Criminal Investigation Powers Bill Exposure Draftassets.justice.vic.gov.au/justice/resources/ecc85dd3-a4d6-423f-a... · Criminal Investigation Powers Bill Exposure Draft ... CHAPTER

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Criminal Investigation Powers Bill

Exposure Draft

TABLE OF PROPOSALS Proposal Page

CHAPTER 1—PRELIMINARY 1

PART 1.1—PURPOSES AND COMMENCEMENT 1

1 Purposes 1 2 Commencement 2

PART 1.2—INTERPRETATION 3

3 Definitions 3 4 Meaning of in custody 20 5 Reference to Parts 20

CHAPTER 2—POWERS OF ARREST AND PREVENTION OF CRIME 21

PART 2.1—POWERS OF ARREST AND USE OF REASONABLE FORCE 21

6 Arrest without warrant only in accordance with Acts 21 7 Arrest without warrant by any person—finding an offence being

committed 21 8 Further power to arrest without warrant by police officer or

protective services officer 22 9 Arrest without warrant by any person—instruction of police

officer 23 10 Arrest without warrant by any person—avoiding arrest 23 11 Police officer may enter and search to arrest without warrant 23 12 Use of reasonable force to prevent commission of any offence or

to make or assist in making arrest 24 13 Use of reasonable force to prevent suicide 24 14 Arrest on reasonable grounds not to be taken to be unlawful 24

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PART 2.2—ARRESTED PERSON TO BE TAKEN BEFORE BAIL JUSTICE OR MAGISTRATES' COURT OR RELEASED 25

15 Person arrested for summary offence to be released without bail 25 16 Arrested person to be taken before bail justice or Magistrates'

Court 25 17 Delivery to bail justice or Magistrates' Court not required if

proceedings can be brought by summons or notice to appear 25

PART 2.3—POWER TO REQUIRE PERSONAL DETAILS 27

18 Requirement to give personal details 27 19 Right to request information from police officer 27 20 Offence not to comply with requirement to state personal details 28 21 Offence to state false or misleading personal details 28 22 Offence for police officer not to state details 29 23 Offence for police officer to state false or misleading details 29

CHAPTER 3—CUSTODY AND QUESTIONING 30

PART 3.1—CUSTODY AND QUESTIONING—GENERAL 30

24 No power to detain person not under arrest 30 25 How long person may be detained in custody 30 26 Person may be questioned about offence for which the person is

in custody 32 27 Right to an interpreter 32 28 Person in custody must be informed of offence 33 29 Person in custody must be cautioned before questioning or

investigation 33 30 Right to communicate with friend or relative, legal practitioner

and consular office 33 31 Children and incapable persons 34 32 Exercise of right to communicate 35 33 Compliance unnecessary in certain circumstances 35 34 Caution and information about rights to be recorded 36 35 Questioning or investigation to be recorded 37 36 Certain offences against Road Safety Act 1986 37

PART 3.2—QUESTIONING FOR OTHER OFFENCE 38

Division 1—General 38

37 Definitions 38 38 Application of Part 38 39 Questioning of detainee 39

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Division 2—Questioning for other offence by consent 39

40 Certain detainees may be questioned etc. by consent 39 41 Informed consent to questioning or participating in investigations

(suspect in detention) 40 42 Questioning or investigation to be recorded 41

Division 3—Questioning for other offence under questioning order 42

43 Application for questioning order 42 44 Court may order detainee's attendance 42 45 Detainee must have opportunity to obtain legal assistance 42 46 Court may order legal assistance 43 47 Determination of application for questioning order 43 48 When court must consider whether detainee fit for questioning 44 49 Court must impose particular conditions in respect of certain

detainees 45 50 Court must inform detainee 46 51 Further questioning orders 47 52 Application for extension of questioning order 48 53 Determination of application for extension of questioning order 48 54 Person to be returned to place of detention 48 55 Questioning order does not prevent authorisation under

section 121 49

PART 3.3—EVIDENCE OF ADMISSIONS AND CERTAIN OTHER EVIDENCE 50

56 Application of Part 50 57 When evidence of admission is inadmissible 50 58 Evidence of admission admissible if recording available 50 59 Court may admit evidence of admission in exceptional

circumstances 51 60 Use of recordings in proceeding for summary offence 51 61 Right to remain silent not affected 51 62 Operation of Evidence Act 2008 52

CHAPTER 4—FINGERPRINTS 53

PART 4.1—GENERAL 53

63 Offences for which fingerprints of suspect may be taken 53 64 Children under the age of 10 years 53 65 Other fingerprinting not affected 54

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PART 4.2—OBTAINING FINGERPRINTS FROM SUSPECT 55

Division 1—Suspect aged 15 years or above 55

66 When fingerprints may be taken from suspect aged 15 years or above 55

Division 2—Suspect aged 10–14 years 55

67 Definition 55 68 When fingerprints may be taken from child suspect 55 69 Fingerprints taken by consent 56 70 Child suspect not to be asked to consent unless parent or guardian

present 56 71 Informed consent to fingerprinting (child suspect) 56 72 Application for order 58 73 Determination of application 58

PART 4.3—OBTAINING FINGERPRINTS FROM VOLUNTEER 60

74 Person may volunteer fingerprints to assist investigation 60 75 Child not to be asked to consent unless parent or guardian present 60 76 Informed consent to fingerprinting (volunteer) 60 77 Meaning of informed consent if volunteer is a child or an

incapable person 62 78 Volunteering fingerprints does not exclude fingerprinting under

other Parts of Chapter 63 79 Suspect cannot volunteer fingerprints under this Part 63

PART 4.4—OBTAINING FINGERPRINTS OF CHILD OR INCAPABLE PERSON WHO DOES NOT VOLUNTEER AND IS NOT A SUSPECT 64

80 Definition 64 81 Part does not apply to suspects 64 82 Application for order 64 83 Determination of application 65

PART 4.5—CONDUCT OF FINGERPRINTING 67

Division 1—Who may take fingerprints 67

84 Who may take fingerprints 67 85 Chief Commissioner may authorise person to take fingerprints 67

Division 2—Who must be present when fingerprints are taken 67

86 Persons who must be present when fingerprinting child or incapable person 67

87 Taking of fingerprints not to be obstructed 68

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Division 3—Taking of fingerprints 69

88 Fingerprints may be taken or recorded by any method or device 69 89 Detention for taking of fingerprints 69 90 Police officer must inform person of certain matters 69 91 Giving of information to be recorded 70 92 Police officer may use reasonable force on suspect 71 93 Fingerprinting must be recorded or witnessed if use of reasonable

force authorised 72 94 Order to be signed if the taking of fingerprints from child suspect

is recorded or witnessed 72

PART 4.6—USE AND DISCLOSURE OF FINGERPRINTS 73

95 When fingerprints and fingerprint information may be used or disclosed 73

96 Fingerprints of volunteers etc. to be used only for investigation of specified offence 75

PART 4.7—DESTRUCTION AND RETENTION OF FINGERPRINTS AND FINGERPRINT INFORMATION 76


97 Definitions 76 98 When suspect's fingerprints must be destroyed 76 99 Destruction of fingerprints taken from a child 78 100 When volunteer's fingerprints must be destroyed 78 101 When fingerprints of child or incapable person taken under

Part 4.4 must be destroyed 79 102 Fingerprints that may be retained indefinitely 79 103 Notification of destruction 79 104 Subsequent fingerprinting not prevented 80

Division 2—Retention order for fingerprints of suspect 80

105 Application for retention order for fingerprints of suspect 80 106 Determination of application 80 107 Fingerprints or information not to be destroyed pending

determination of application 81

PART 4.8—FINGERPRINTS FOR IDENTIFICATION PURPOSES 82

108 Fingerprints for identification purposes 82

PART 4.9—FAILURE TO COMPLY WITH CHAPTER 84

Division 1—When evidence of fingerprints is or may be inadmissible 84

109 Inadmissible evidence 84 110 Inadmissible evidence that the court has discretion to admit 84

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Division 2—Offences 84

111 Unauthorised use etc. of fingerprints or fingerprint information 84 112 Offences relating to destruction of fingerprints and fingerprint

information 85

CHAPTER 5—FORENSIC PROCEDURES 86

PART 5.1—GENERAL 86

113 Application of Chapter 86 114 No request for forensic procedure except in accordance with Act 86 115 Children under the age of 10 years 86 116 Forensic procedure to obtain sample other than DNA sample 86 117 Operation of other Acts 87

PART 5.2—FORENSIC PROCEDURE ON SUSPECT 88


118 When a forensic procedure may be conducted on a suspect 88

Division 2—Adult suspect may be requested to undergo a forensic procedure 89

119 When request for forensic procedure may be made 89 120 Informed consent to forensic procedure (adult suspect) 89

Division 3—Police may authorise forensic procedure on adult suspect 91

121 Senior police officer may authorise non-intimate forensic procedure for certain adults 91

122 When senior police officer authorises procedure 93 123 When senior police officer does not authorise procedure 93

Division 4—Court may order a forensic procedure 94

124 Application for order 94 125 Determination of application 94

PART 5.3—COVERT COLLECTION OF DNA SAMPLE 97

126 Authorisation required for analysis of covert DNA sample 97 127 Application for covert DNA sample authorisation 97 128 Senior police officer may give covert DNA sample authorisation 98 129 Duration of covert DNA sample authorisation 101 130 Scope of covert DNA sample authorisation 101 131 Details of collection or analysis of covert DNA sample to be

recorded 101 132 Use of covert DNA sample of person subsequently charged with

offence 102 133 Information to be given on charging 102

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134 Giving of information must be recorded 103 135 Other forensic procedures 103

PART 5.4—OBTAINING DNA SAMPLE FROM OFFENDER 104

136 Definitions 104 137 Application for order for DNA sample from offender 104 138 Determination of application 105

PART 5.5—OBTAINING DNA SAMPLE FROM VOLUNTEER 107

139 Suspect cannot volunteer DNA sample under this Part 107 140 Person may volunteer DNA sample to assist investigation 107 141 Meaning of consent if volunteer is a child or an incapable

person 108 142 Child not to be asked to consent unless parent or guardian

present 109 143 Informed consent to giving DNA sample (volunteer other than

biological relative of missing person) 109 144 Biological relative of missing person may volunteer DNA

sample 110 145 Informed consent to giving DNA sample (volunteer who is a

biological relative of missing person) 110 146 Victoria Police and VIFM personnel may volunteer DNA

samples 112

PART 5.6—OBTAINING DNA SAMPLE FROM CHILD OR INCAPABLE PERSON WHO DOES NOT VOLUNTEER AND IS NOT A SUSPECT 114

147 Definition 114 148 Part does not apply to suspects 114 149 Application for order 114 150 Determination of application 115

PART 5.7—FORENSIC PROCEDURE ON OR DNA SAMPLE FROM DECEASED PERSON 117

151 When authority to conduct forensic procedure continues after death of subject 117

152 Senior next of kin may consent to DNA sample being taken from deceased person 117

153 Informed consent to taking DNA sample (senior next of kin of deceased person) 117

154 Application for court order 119 155 Coroner a party to application 119 156 Court order for DNA sample from deceased person 119

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PART 5.8—INTERIM ORDER FOR FORENSIC PROCEDURE FOR CRIME SCENE MATERIAL ON SUSPECT 121

157 Definitions 121 158 Application for interim order directing forensic procedure 121 159 Determination of application for interim order 121 160 Application for interim order by audio link or audio visual link 122 161 Hearing of application by audio link or audio visual link 123 162 Making of order on application by audio link or audio visual link 124 163 Applicant's duties on making of interim order by audio link or

audio visual link 124 164 Further hearing after interim order 126 165 Use of DNA sample obtained on confirmed interim order 126

PART 5.9—INTERSTATE FORENSIC ORDERS 127

166 Registration of orders 127 167 Registration of interstate forensic orders in Victoria 127 168 Cancellation of registration 128 169 Execution of registered interstate forensic order 128 170 Taking, retention and use of DNA samples authorised by

corresponding laws 128

PART 5.10—CONDUCT OF FORENSIC PROCEDURE 129

Division 1—Attendance of offender 129

171 Notice to attend for taking of DNA sample from offender 129

Division 2—Detention of person for purpose of conducting forensic procedure 130

172 Detention for conduct of certain forensic procedures 130

Division 3—Who may conduct forensic procedure 130

173 Who may conduct forensic procedure 130 174 Gender restrictions for certain forensic procedures 131 175 Subject may choose who conducts certain intimate forensic

procedures 131 176 Chief Commissioner of Police may authorise person to conduct

non-intimate forensic procedures 133

Division 4—Conduct of a forensic procedure 133

177 How forensic procedures must be conducted 133 178 How samples must be taken 133 179 Caution before forensic procedure on suspect 134 180 Information to be given to suspect where senior police officer

authorised forensic procedure 135 181 Warning that reasonable force may be used in certain

circumstances 136

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182 Certain forensic procedures must be recorded or witnessed 136 183 Persons who must be present when forensic procedure conducted

on child or incapable person 137 184 Police officer may attend forensic procedure 138 185 When police officer may use reasonable force 139 186 Order to be signed if forensic procedure recorded or witnessed 140


187 Immunity of medical practitioners, nurses, midwives, dentists and other persons 140

188 Medical practitioners etc. not compelled to participate in forensic procedures 141

PART 5.11—USE AND DISCLOSURE OF DNA SAMPLES AND DNA INFORMATION 142


189 Meaning of use 142 190 Purposes for which DNA information may be used or disclosed 142

Division 2—Use of DNA profile—unlimited purposes 144

191 DNA profiles from suspects and offenders 144 192 Confirmed interim order—DNA profile may be included on

suspects index with identifying information 145 193 Deceased person—DNA sample obtained in accordance with

court order 146 194 Statistical information 146 195 Crime scene material 146

Division 3—Use of DNA profile—limited purposes 146

196 Biological relative of a missing person 146 197 Deceased person—DNA sample if senior next of kin consents 147

Division 4—Use of DNA profile—limited purposes—not to be included on a DNA database system 147

198 Covert DNA sample—use only for investigation of specified offence 147

199 Volunteers—use only for investigation of specified offence 148 200 DNA sample from child or incapable person not a volunteer or

suspect—use only for specified purpose 148 201 Storage of Victoria Police and VIFM personnel DNA

information 149 202 DNA samples from Victoria Police and VIFM personnel—use

only for elimination 149 203 DNA samples and DNA information from Victoria Police and

VIFM personnel—release only with consent 149

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Division 5—Prohibitions on use of DNA sample during appeal period or taken under interim order 149

204 Prohibition on use of DNA sample or DNA information from offender during appeal period 149

205 DNA profile must be removed from DNA database system if leave to appeal granted out of time 151

206 Stay on use of material taken after interim order 152

Division 6—Interstate transmission of DNA information 152

207 Arrangements for interstate transmission of information on DNA database system 152

Division 7—Matching of information on DNA database system 153

208 How information on a DNA database system may be matched 153

PART 5.12—PROVISION OF FORENSIC REPORTS AND MATERIAL FOR ANALYSIS 156

209 Definitions 156 210 When forensic report is to be provided to suspect 156 211 Content of forensic report 157 212 Suspect may request further forensic report 157 213 Suspect may request part of certain material for analysis 158

PART 5.13—DESTRUCTION OF DNA SAMPLES AND DNA INFORMATION 160


214 Definitions 160 215 Chief Commissioner of Police responsible for destruction of

DNA samples and DNA information 161 216 Director of VIFM responsible for destruction of VIFM DNA

samples and DNA information 161 217 When suspect's DNA sample must be destroyed 161 218 Destruction of DNA sample taken from a child 163 219 When covert DNA sample must be destroyed 164 220 Senior police officer may extend period within which covert

DNA sample must be destroyed 165 221 When offender's DNA sample must be destroyed 166 222 When volunteer's DNA sample must be destroyed 166 223 When deceased person's DNA sample must be destroyed 167 224 When Victoria Police and VIFM personnel DNA samples must

be destroyed 167 225 When DNA sample from child or incapable person taken under

Part 5.6 must be destroyed 168 226 DNA samples and DNA information obtained unlawfully to be

destroyed 168

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227 DNA sample that may be retained indefinitely 169 228 Notification of destruction 169 229 Subsequent forensic procedure not prevented 170

Division 2—Retention order 170

230 Application for retention order 170 231 Determination of application 171 232 DNA sample and DNA information not to be destroyed pending

determination of application 172

PART 5.14—FAILURE TO COMPLY WITH CHAPTER 173

Division 1—When DNA evidence is or may be inadmissible 173

233 Inadmissible evidence 173 234 Admissibility of DNA samples from Victoria Police and VIFM

personnel 173 235 Inadmissible evidence that the court has discretion to admit 174 236 Admissibility of audiovisual recordings of forensic procedures

restricted 175 237 Evidence admissible in proceedings for relevant offence 175 238 Evidence obtained through medical or dental treatment

admissible 176

Division 2—Offences 176

239 Offence to obstruct or hinder the conduct of a forensic procedure 176

240 Offence to give false or misleading personal details for forensic procedure 176

241 Offence to request another person to undergo forensic procedure 177

242 Offence to undergo forensic procedure in place of another 177 243 Prohibition on use etc. of DNA samples or DNA information

not permitted by Part 5.11 177 244 Prohibition on use etc. of DNA samples that should have been

destroyed or DNA information derived from those samples 178 245 Offences relating to destruction of DNA samples or DNA

information 178

CHAPTER 6—WARRANTS 180

PART 6.1—WARRANTS—GENERAL 180

246 Search warrant rules in Magistrates' Court Act 1989 to apply to search warrants issued under this Act 180

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PART 6.2—SEARCH WARRANTS 181

Division 1—Issue of search warrant or covert search warrant 181

247 Application of Division 181 248 Covert search not permitted without search warrant authorisation 181 249 Who may apply for a search warrant or a covert search warrant 181 250 Application for search warrant or covert search warrant 182 251 Information to be included in application for search warrant 182 252 Information to be included in application for covert search

warrant 183 253 Determination of application for search warrant 184 254 Determination of application for covert search warrant 184 255 Form and content of search warrant 186 256 Covert search warrants and privilege 187 257 Authority conferred by search warrant and covert search warrant 188 258 Magistrate may give direction in warrant as to tainted property 189

Division 2—Execution of warrant 189

259 Search warrant and covert search warrant to be executed by day 189 260 Announcement before entry 190 261 Person executing search warrant must make identity known and

provide copy of the search warrant 191 262 Notice to occupier of premises entered in accordance with

covert search warrant 191 263 Notice to occupier of adjoining premises entered in accordance

with covert search warrant 192 264 Application for extension of time for notifying occupier of

premises or adjoining premises entered in accordance with covert search warrant 194

265 Determination of application for extension of time 194 266 Report to magistrate after executing covert search warrant 195

Division 3—Seizure 196

267 Seized things must be photographed 196 268 Police officer must provide receipt for seized things 196 269 Police officer must provide copy of seized things 197 270 Chief Commissioner of Police may retain seized things 197 271 Magistrates' Court may order production of seized things 198 272 Seized things may be tested 198 273 Police officer may destroy or dispose of seized drug related

things 199 274 Police officer may destroy or dispose of seized weapons or

explosives 200 275 When things seized under covert search warrant may be

returned or substituted 201 276 Application for extension of time to return or substitute things

seized under covert search warrant 201

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277 Determination of application for extension of time to return or substitute things seized under covert search warrant 203

278 Police officer must report to magistrate about returning or substituting things seized under covert search warrant 203

279 Ministerial arrangements for things seized in connection with extra-territorial offences 204

Division 4—Assistance in executing search warrant or covert search warrant 205

280 Police may use assistants and equipment 205 281 Police officer may operate electronic equipment at premises

being searched 206 282 Police officer may arrange for expert to operate electronic

equipment at premises being searched 207 283 Application for extension of time to allow expert to attend 209 284 Determination of application for extension of time to allow

expert to attend 209 285 Power to require assistance from person with knowledge of a

computer or computer network 210 286 Offence in relation to assistance in executing search warrants 213

Division 5—Confiscation Act 1997 213

287 Notice that seized thing is being held for purposes of Confiscation Act 1997 213

288 Application for tainted property to be held or retained 214 289 Court may make direction 214 290 Notice of direction under section 289 215 291 Effect of directions under section 289 215

Division 6—Privilege claims in relation to search warrants 216

292 What is privilege? 216 293 Privilege claims in relation to search warrants 216 294 Application to court to determine privilege 217 295 Determination of privilege claims 218 296 Privilege in relation to covert search warrants—before thing

seized 219 297 Privilege in relation to covert search warrants—after thing

seized 220 298 Application to court to determine privilege in relation to covert

search warrants 221 299 Determination of privilege in relation to covert search warrants 221 300 Offences in relation to sealed documents or other things 222


301 Death, absence of magistrate who issued warrant 223

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PART 6.3—WARRANTS FOR ATTENDANCE AT HEARINGS, FOR FINGERPRINTING OR FOR FORENSIC PROCEDURE 224

302 Application of Part 224 303 Application for warrant 224 304 Information to be included in application for warrant 224 305 Application for warrant may be made electronically 225 306 Determination of application for warrant 225 307 Form and content of warrant 226 308 Authority conferred by warrant 226 309 Announcement before entry 227 310 Expiry of warrant to arrest 227 311 Return of detained person 228 312 Report to court after executing warrant 229

CHAPTER 7—GENERAL 231

PART 7.1—APPLICATIONS FOR ORDERS, ADJOURNMENT AND LEGAL REPRESENTATION OF CHILD OR INCAPABLE PERSON 231

313 Form of application for order 231 314 Notice of application for order 232 315 Power to adjourn hearing 233 316 Adjournment to obtain legal representation 234 317 Court may order legal assistance 234 318 Legal representation of child or incapable person 235 319 Persons who must be present during hearing of application 236 320 Court may make enquiries 237 321 Reasons for making order 237 322 Copy of order and reasons to be served 238

PART 7.2—WITHDRAWAL OF INFORMED CONSENT AND RECORDING REQUIREMENTS 239

323 Informed consent to be recorded 239 324 Withdrawal of consent 239 325 Withdrawal of consent to be recorded 240

PART 7.3—RECORDINGS 241

326 Definitions 241 327 Digital recordings to be certified 244 328 Service of recording of questioning of suspect 244 329 Service of other recordings 245 330 Court may give directions in relation to a recording 245 331 Retention of copy of recording 246 332 Use of recordings for training, teaching or testing purposes 247 333 Offences in relation to recordings 248

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PART 7.4—OVERSIGHT BY IBAC 252

334 IBAC to monitor police compliance with Act 252 335 Chief Commissioner of Police to report to IBAC regarding

covert DNA sampling 252 336 Inspection of records by authorised officers 253 337 IBAC to report to Parliament 254

PART 7.5—MISCELLANEOUS 256

338 Service of documents 256 339 Giving of information 256 340 Regulations 256

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SCHEDULE—DNA Sample Offences—Historical Offences 258 ═══════════════

ENDNOTES 266

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Criminal Investigation Powers Bill

Exposure Draft

CHAPTER 1—PRELIMINARY

PART 1.1—PURPOSES AND COMMENCEMENT

1 Purposes The purposes of this Act are—

(a) to provide for the custody and questioning of persons suspected of having committed offences; and

(b) to provide for the collection, use and retention of fingerprints, DNA samples and other forensic samples from suspects and offenders; and

Victoria

Part 1.1—Purposes and Commencement

Criminal Investigation Powers Bill Exposure Draft

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(c) to provide for the collection, use and retention of fingerprints, DNA samples and other forensic samples from volunteers, including victims and witnesses; and

(d) to provide powers of arrest, search and seizure; and

(e) to provide for monitoring by the IBAC of compliance with this Act by Victoria Police; and

(f) to make consequential and other amendments.

2 Commencement (1) Subject to subsection (2), this Act comes into

operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 January 2016, it comes into operation on that day.

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Part 1.2—Interpretation


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PART 1.2—INTERPRETATION

3 Definitions In this Act—

admission has the same meaning as in the Evidence Act 2008;

adult means a person of or over the age of 18 years;

analyst has the same meaning as in section 120 of the Drugs, Poisons and Controlled Substances Act 1981;

appeal includes application for leave to appeal;

appeal, in relation to an offence in respect of which an order under section 138 is made, means—

(a) an appeal against conviction of the offence; or

(b) an appeal against a verdict of not guilty because of mental impairment of the offence; or

(c) an appeal against a finding under section 17(1)(c) or 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that a person has committed the offence;

appeal period means—

(a) the period permitted by or under any Act for commencing an appeal; or

(b) if an appeal has been commenced within the period referred to in paragraph (a), the period ending with the determination of the appeal or the abandonment or striking out of the appeal;



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appropriate authority means—

(a) in relation to the Commonwealth or the Australian Capital Territory—

(i) the Commissioner (within the meaning of section 23WA of the Crimes Act 1914 of the Commonwealth); or

(ii) an authority prescribed for the purposes of this paragraph; or

(b) in relation to any other participating jurisdiction—

(i) an authority exercising, in relation to the police force of that jurisdiction, functions corresponding to those of the Chief Commissioner of Police; or

(ii) an authority prescribed for the purposes of this paragraph;

botanist has the same meaning as in section 120 of the Drugs, Poisons and Controlled Substances Act 1981;

Chief Commissioner of Police means the Chief Commissioner of Police appointed under section 17 of the Victoria Police Act 2013;

child means a person under the age of 18 years;

corresponding law means a law of another State, a Territory or the Commonwealth relating to the carrying out of fingerprinting, forensic procedures and DNA database systems that—

(a) substantially corresponds to Chapters 4 and 5; or

(b) is prescribed as a corresponding law;



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covert DNA sample means a DNA sample from a person collected without the person's knowledge;

covert DNA sample authorisation means an authorisation under section 128;

covert search warrant means a search warrant issued under Division 1 of Part 6.2 that authorises a covert search of premises;

covert search warrant offence means an offence referred to in section 247;

crime scene index means an index of DNA profiles derived from crime scene material;

crime scene material means material from which a DNA profile may be derived and which is found—

(a) at a place (whether in or outside Victoria) where an offence (whether against the law of Victoria or of a participating jurisdiction) was, or is reasonably suspected of having been, committed; or

(b) on the victim of an offence referred to in paragraph (a) or on anything that is reasonably suspected of being worn or carried by the victim when the offence was, or is reasonably suspected of having been, committed; or

(c) on an object or person that is reasonably suspected of being associated with the commission of an offence referred to in paragraph (a);

CrimTrac means the CrimTrac Agency, established as an Executive Agency by the Governor-General by order under section 65



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of the Public Service Act 1999 of the Commonwealth;

dentist means a person registered under the Health Practitioner Regulation National Law—

(a) to practise in the dental profession as a dentist (other than as a student);

(b) in the dentists division of that profession;

detained person means—

(a) a person deemed by Part 1A of the Corrections Act 1986 to be in the legal custody of—

(i) the Secretary within the meaning of that Act; or

(ii) the Chief Commissioner of Police; or

(b) a person deemed by Part 5.8 of Chapter 5 of the Children, Youth and Families Act 2005 to be in the legal custody of the Secretary within the meaning of that Act; or

(c) a forensic resident or security resident in a residential service, residential institution or residential treatment facility within the meaning of the Disability Act 2006; or

(d) a patient within the meaning of the Mental Health Act 2014; or Note

Section 37 provides that in Part 3.2 detained person does not include compulsory patients within the meaning of the Mental Health Act 2014.



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(e) a person detained at a treatment centre under a detention and treatment order made under section 20 of the Severe Substance Dependence Treatment Act 2010;

DNA database system means a database (whether in computerised or other form and however described) containing—

(a) one or more of the following indexes of DNA profiles and identifying information—

(i) a crime scene index;

(ii) a missing persons index;

(iii) an unknown deceased persons index;

(iv) a serious offenders index;

(v) a volunteers (unlimited purposes) index;

(vi) a volunteers (limited purposes) index;

(vii) a suspects index; and

(b) a statistical index; and

(c) any other prescribed index; Example

The National Criminal Investigation DNA database (NCIDD) that is managed by the Commonwealth is a DNA database system.

DNA information means information derived from analysis of a DNA sample and includes a DNA profile;

DNA profile means the pattern of DNA unique to each individual that is used as a means of identification;



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DNA sample means any material—

(a) from which a DNA profile may be derived; and

(b) which is obtained from samples taken or collected or procedures conducted in accordance with this Act;

domestic partner has the same meaning as in the Equal Opportunity Act 2010;

evidentiary material means material that is, or may afford, evidence of the commission of an offence;

fingerprint information, in relation to a fingerprint, means information derived from analysis of the fingerprint and includes any record, copy or photograph of the fingerprint;

fingerprints includes finger, palm, toe and sole prints;

forensic procedure means an intimate forensic procedure or a non-intimate forensic procedure to which this Act applies but does not include—

(a) the taking of a fingerprint; or

(b) the taking of anything of or from a person's body for the sole purpose of establishing the identity of the person;

forensic relevance, in relation to the fingerprints of a person, a DNA sample from a person or information or a sample obtained by the conduct of a forensic procedure, means that there are reasonable grounds to suspect that evidence obtained from analysis of the fingerprints, DNA sample or the information or sample (as the case requires) would tend to confirm or disprove the person's



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involvement in the commission of the offence under investigation;

forensic report means a laboratory report on the results of analysis of a sample from a suspect and containing the information specified in section 211;

forensic scientist means a person engaged (whether as an employee or otherwise) in that capacity by—

(a) the Australian Federal Police; or

(b) the police force or police service of a State or Territory;

held in a prison or police gaol means—

(a) deemed by Part 1A of the Corrections Act 1986 to be in the legal custody of—

(i) the Secretary within the meaning of that Act; or

(ii) the Chief Commissioner of Police; or

(b) detained in a youth justice centre in the custody of the Secretary within the meaning of the Children, Youth and Families Act 2005;

IBAC means the Independent Broad-based Anti-corruption Commission established under section 12 of the Independent Broad-based Anti-corruption Commission Act 2011;

identifying information means—

(a) in relation to fingerprints, information which may identify the person from whom the fingerprints were taken;



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(b) in relation to a DNA sample, information which may identify the person from whom the DNA sample was obtained;

(c) in relation to a forensic procedure, information which may identify the person on whom the forensic procedure was conducted;

in custody has the meaning given in section 4;

incapable person means an adult who—

(a) is incapable of understanding the general nature and effect of, and purposes of—

(i) questioning in relation to an alleged offence; or

(ii) taking fingerprints; or

(iii) conducting a forensic procedure—

as the case requires; or

(b) is incapable of indicating whether the person does or does not give informed consent to—

(i) questioning in relation to an alleged offence; or

(ii) fingerprints being taken; or

(iii) a forensic procedure being conducted—

as the case requires;

independent person means, in relation to a person (person A)—

(a) a person nominated by, or acceptable to, person A; or



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(b) if that person is not available, an adult who—

(i) is not a police officer or a person otherwise involved in the investigation of the alleged offence; and

(ii) if practicable, is of the same sex as person A or, if person A identifies as a member of a particular gender, is of that gender;

informant has the same meaning as in the Criminal Procedure Act 2009;

interstate forensic order means an order, warrant or similar instrument for the carrying out of a forensic procedure made under a corresponding law of a participating jurisdiction;

interstate investigating official means a person (other than a person who is engaged in covert investigations under the orders of a superior) who is—

(a) a member of—

(i) the Australian Federal Police; or

(ii) the police force or police service of another State or a Territory; or

(b) a person appointed by or under an Act of the Commonwealth or another State or a Territory whose functions or duties include functions or duties in respect of the prevention or investigation of offences;

Note

Part IC of the Crimes Act 1914 of the Commonwealth applies if the investigating official is a member of the Australian Federal Police.



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intimate forensic procedure means—

(a) a physical examination of an intimate part of the body;

(b) the taking of—

(i) a blood sample; or

(ii) a sample of pubic hair, whether or not it includes the root; or

(iii) a swab, washing or sample taken from an external part of the body that is an intimate part of the body; or

(iv) a sample of saliva; or

(v) a dental impression; or

(c) the taking of a buccal swab by a person other than the subject without the consent of the subject;

(d) the taking of a photograph of an intimate part of the body;

intimate part of the body means—

(a) the genital or anal region of a male or female; or

(b) the breast of a female or a person who identifies as female;

investigating official means—

(a) a police officer; or

(b) a person appointed by or under an Act whose functions include functions in respect of the prevention or investigation of offences—

other than a police officer or person who is engaged in covert investigations under the orders of a superior;



13

legal practitioner means an Australian legal practitioner; or

medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

member of Victoria Police personnel has the same meaning as in the Victoria Police Act 2013;

midwife means a person registered under the Health Practitioner Regulation National Law—

(a) to practise in the nursing and midwifery profession as a midwife (other than as a student); and

(b) in the register of midwives kept for that profession;

missing persons index means an index of DNA profiles of persons who are missing;

non-intimate forensic procedure means—

(a) a physical examination of any part of the body other than an intimate part of the body; or

(b) the taking of—

(i) a sample of hair other than pubic hair, whether or not it includes the root; or

(ii) a sample of matter from under a fingernail or toenail; or

(iii) a swab, washing or sample from any external part of the body other than an intimate part of the body; or



14

(c) the taking of a buccal swab by the subject or by a person other than the subject with the consent of the subject; or

(d) the taking of a photograph of any part of the body other than an intimate part of the body but not including the taking of a photograph—

(i) to establish or confirm the identity of the person; or

(ii) to find out about the criminal history of the person; or

(iii) to keep criminal records;

notice to appear has the same meaning as in the Criminal Procedure Act 2009;

nurse means a person registered under the Health Practitioner Regulation National Law to practise in the nursing and midwifery profession as a nurse (other than as a midwife or as a student);

occupier means a person who appears to be an occupier of, or to be in charge of, premises;

ordinary service has the same meaning as in the Criminal Procedure Act 2009;

participating jurisdiction means the Commonwealth, another State or a Territory in which there is a corresponding law in force;

personal details, in relation to a person, means—

(a) the person's full name; and

(b) the person's date of birth; and

(c) the person's home address or work address;



15

personal service has the same meaning as in the Criminal Procedure Act 2009;

physical examination means an examination of the external part of a person's body requiring touching of the person or removal of the person's clothing;

police gaol has the same meaning as in the Corrections Act 1986;

police officer has the same meaning as in the Victoria Police Act 2013;

premises includes a vehicle and any place, whether built on or not;

prison has the same meaning as in the Corrections Act 1986 and includes a youth justice centre established under section 478 of the Children, Youth and Families Act 2005;

probative value has the same meaning as in the Evidence Act 2008;

protective services officer has the same meaning as in the Victoria Police Act 2013;

questioning order means an order under section 47, including an extension of the order under section 53;

registered interstate forensic order means an order registered under section 167(3);

related offences means offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character;

relevant offence, in relation to fingerprints or a forensic procedure, means—



16

(a) the offence in respect of which the fingerprints are taken or the procedure is conducted; or

(b) any other offence that is founded on the same facts as the offence referred to in paragraph (a); or

(c) any other offence in respect of which the fingerprints have forensic relevance or evidence obtained as a result of the forensic procedure has forensic relevance;

responsible Minister, in relation to a participating jurisdiction, means a Minister of that jurisdiction who is responsible for administration of a corresponding law;

responsible person, in relation to a DNA database system, means the person responsible for the care, control and management of the DNA database system;

retention order means—

(a) in relation to fingerprints, an order made under section 106; or

(b) in relation to a DNA sample or DNA information, an order made under section 231;

search warrant means a search warrant issued under Division 1 of Part 6.2;

senior next of kin has the same meaning as in the Coroners Act 2008;

senior police officer means—

(a) (except in Part 5.3 and section 220) a police officer of or above the rank of senior sergeant;



17

(b) in Part 5.3 (Covert Collection of DNA Sample) and section 220, a police officer of or above the rank of superintendent;

serious offenders index means an index of DNA profiles derived from DNA samples taken from—

(a) offenders (other than persons found not guilty because of mental impairment) in accordance with Part 5.4, or under a corresponding law of a participating jurisdiction; and

(b) suspects who have been found guilty of—

(i) the indictable offence in respect of which the DNA sample was taken; or

(ii) any other relevant offence that is an indictable offence; or

(iii) any other indictable offence in respect of which evidence obtained as a result of the DNA sample being taken had forensic relevance; or

(iv) an offence in respect of which a forensic procedure may be conducted under a corresponding law of a participating jurisdiction;

spouse has the same meaning as in the Equal Opportunity Act 2010;

statistical index means an index of information that—

(a) is DNA information obtained under Chapter 5, or under a corresponding law of a participating jurisdiction; and



18

(b) has been compiled for statistical purposes; and

(c) cannot be used to discover the identity of persons from whom the DNA information was obtained;

subject means—

(a) in relation to fingerprints, the person from whom the fingerprints are, or are to be, taken; or

(b) in relation to a forensic procedure, the person on whom the forensic procedure is, or is to be, conducted; or

(c) in relation to a DNA sample, the person from whom the DNA sample is, or is to be, obtained; or

(d) in relation to DNA information, the person who provides the DNA sample from which the DNA information is derived;

suspect means a person (other than a child under the age of 10 years) who is suspected on reasonable grounds of having committed an offence, whether or not a criminal proceeding has been commenced against the person in respect of the offence;

suspects index means an index of DNA profiles derived from DNA samples taken from suspects in accordance with Part 5.2, or under a corresponding law of a participating jurisdiction or taken from persons found not guilty because of mental impairment in accordance with Part 5.4;

unknown deceased persons index means an index of DNA profiles of deceased persons whose identities are unknown;



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vehicle includes motor vehicle, aircraft and vessel;

volunteer means a person who volunteers to give—

(a) fingerprints under Part 4.3; or

(b) a DNA sample under Part 5.5;

volunteers (limited purposes) index means an index of DNA profiles derived from DNA samples taken from the following persons who have chosen (or, in the case of deceased persons, whose senior next of kin has chosen) that the information obtained from analysis of the sample may be used only for a limited purpose that is specified by the person and noted on the index—

(a) volunteers under section 144, or a corresponding law of a participating jurisdiction;

(b) volunteers under section 464ZGB of the Crimes Act 1958 as in force immediately before its repeal or a corresponding law of a participating jurisdiction;

(c) deceased persons under Part 5.7 whose identity is known;

volunteers (unlimited purposes) index means an index of DNA profiles derived from DNA samples taken from—

(a) deceased persons under Part 5.7 whose identity is known; and

(b) volunteers under section 464ZGB of the Crimes Act 1958 as in force immediately before its repeal or a corresponding law of a participating jurisdiction who have chosen that the information obtained from analysis of



20

the samples may be used for the purpose of a criminal investigation or any other purpose for which the DNA database system may be used;

withdrawal of consent means consent withdrawn in accordance with section 324;

youth justice centre has the same meaning as in the Children, Youth and Families Act 2005.

4 Meaning of in custody For the purposes of this Act, a person is in custody if the person is—

(a) under lawful arrest by warrant; or

(b) under lawful arrest under section 7, 8, 9 or 10 or a provision of any other Act; or

(c) in the company of an investigating official and there is sufficient information in the possession of the investigating official to justify the arrest of the person in respect of an offence and the person is, or is to be, questioned or otherwise investigated to determine the involvement (if any) of the person in the commission of the offence.

5 Reference to Parts

Unless the context otherwise requires, a reference in this Act to a Part by a number must be construed as a reference to the Part of this Act designated by that number.

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Part 2.1—Powers of Arrest and Use of Reasonable Force


21

CHAPTER 2—POWERS OF ARREST AND PREVENTION OF CRIME

PART 2.1—POWERS OF ARREST AND USE OF REASONABLE FORCE

6 Arrest without warrant only in accordance with Acts

A person must not be arrested without warrant except in accordance with—

(a) this Act; or

(b) any other Act that expressly gives power to arrest without warrant.

7 Arrest without warrant by any person—finding an offence being committed

(1) In this section—

offence means offence at common law or an offence against a provision of an Act and, unless otherwise expressly provided by an Act, does not include a contravention of a subordinate instrument.

(2) Any person (person A) may arrest without warrant another person who—

(a) person A finds committing an offence; or

(b) person A finds doing any act or so behaving or in circumstances that person A believes on reasonable grounds that the person so found has committed an offence—

if person A believes on reasonable grounds that the arrest is necessary—

(c) to ensure the attendance of the other person before a court of competent jurisdiction; or

(d) to preserve public order; or



22

(e) to prevent the continuation or repetition of the offence; or

(f) to prevent the commission of a further offence; or

(g) for the safety or welfare of members of the public or the other person.

(3) If person A is not a police officer, person A must deliver the person arrested into the custody of a police officer as soon as practicable after the arrest.

Note

These powers may be exercised by any person, including a police officer and a protective services officer.

8 Further power to arrest without warrant by police officer or protective services officer

(1) A police officer may arrest without warrant a person who the police officer believes on reasonable grounds—

(a) has committed an indictable offence in Victoria; or

(b) has committed an offence outside Victoria which, if committed in Victoria, would be an indictable offence against the law of Victoria.

(2) A protective services officer on duty at a designated place within the meaning of the Victoria Police Act 2013 may arrest without warrant a person who the protective services officer believes on reasonable grounds—

(a) has committed an indictable offence in Victoria; or



23

(b) has committed an offence outside Victoria which, if committed in Victoria, would be an indictable offence against the law of Victoria.

(3) A protective services officer who arrests a person under subsection (2) must deliver the person into the custody of a police officer as soon as practicable after the arrest.

(4) The powers conferred by this section are in addition to powers conferred by section 7, 9 or 10 or by or under any other Act.

9 Arrest without warrant by any person—instruction of police officer

Any person may arrest without warrant another person if instructed to do so by a police officer who has power under this Act to make that arrest.

10 Arrest without warrant by any person—avoiding arrest

Any person may arrest without warrant another person if the person making the arrest believes on reasonable grounds that the other person is avoiding arrest by a person who has the power to make that arrest.

11 Police officer may enter and search to arrest without warrant

(1) For the purpose of arresting without warrant (whether under this Part or any other enactment) a person for an indictable offence, a police officer may enter and search any place where the police officer believes on reasonable grounds the person to be present.

(2) If necessary, a police officer may use reasonable force to enter a place under subsection (1).



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12 Use of reasonable force to prevent commission of any offence or to make or assist in making arrest

A person may use any force that the person believes on reasonable grounds to be proportionate and necessary in order to—

(a) prevent the commission, continuance or completion of an offence; or

(b) effect, or assist in effecting, the lawful arrest of a person who—

(i) is found committing an offence; or

(ii) is found doing an act or so behaving or in circumstances that the person believed on reasonable grounds that the person so found has committed an offence.

13 Use of reasonable force to prevent suicide A person may use any force that the person believes on reasonable grounds to be necessary in order to prevent—

(a) the commission of suicide; or

(b) the commission of an act that the person believes on reasonable grounds would, if committed, amount to suicide.

14 Arrest on reasonable grounds not to be taken to be unlawful

An arrest that is made under a belief on reasonable grounds in accordance with this Part does not cease to be lawful and is not to be taken to be unlawful if it subsequently appears or is found that the person arrested did not commit the alleged offence.

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Part 2.2—Arrested Person to be Taken Before Bail Justice or Magistrates' Court or Released


25

PART 2.2—ARRESTED PERSON TO BE TAKEN BEFORE BAIL JUSTICE OR MAGISTRATES' COURT OR RELEASED

15 Person arrested for summary offence to be released without bail

(1) A person who has made an arrest under section 7(2) in respect of a summary offence must release the arrested person from custody without bail, or cause the arrested person to be so released, if the person making the arrest no longer believes that the arrest is necessary for a reason referred to in section 7(2)(c), (d), (e), (f) or (g).

(2) An arrested person must be released under subsection (1) whether or not a summons to answer to a charge has been issued or a notice to appear has been served on the person arrested.

16 Arrested person to be taken before bail justice or Magistrates' Court

Subject to sections 15(1) and 17, a person who makes an arrest under section 7, 8, 9 or 10 must take the arrested person, or deliver the arrested person to a police officer to be taken, before a bail justice or the Magistrates' Court to be dealt with according to law.

17 Delivery to bail justice or Magistrates' Court not required if proceedings can be brought by summons or notice to appear

If a police officer believes on reasonable grounds that a proceeding can effectively be brought against the person by way of summons or notice to appear, the police officer is not required to take into custody or to take before a bail justice or the Magistrates' Court a person—

(a) found committing an offence; or

Part 2.2—Arrested Person to be Taken Before Bail Justice or Magistrates' Court or Released


26

(b) found doing any act or so behaving or in circumstances that the police officer believed on reasonable grounds that the person so found has committed an offence.

Note

This section applies to a person arrested by a police officer, a person arrested by a protective services officer or a person arrested by a person under section 7 or 8.

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Part 2.3—Power to Require Personal Details


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PART 2.3—POWER TO REQUIRE PERSONAL DETAILS

18 Requirement to give personal details (1) A police officer may request a person to state the

personal details of the person if the police officer believes on reasonable grounds that the person—

(a) has committed or is about to commit an offence, whether indictable or summary; or

(b) may be able to assist in the investigation of an indictable offence which has been committed or the police officer suspects has been committed.

(2) A police officer who makes a request under subsection (1) must inform the person of the grounds for the police officer's belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence.

Notes

1 Personal details is defined in section 3.

2 Section 339 requires the information to be given orally and in language that is likely to be understood by the person.

19 Right to request information from police officer If a police officer requests a person to state personal details under section 18, the person may request the police officer to state, orally or in writing—

(a) the full name and rank of the police officer; and

(b) the address of the police station that is the ordinary place of duty of the police officer.



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20 Offence not to comply with requirement to state personal details

(1) Subject to subsections (2) and (3), a person must not refuse or fail to comply with a request for personal details made in accordance with section 18.

Penalty: Level 11 fine (5 penalty units maximum).

Note

Section 63 provides that an offence against this provision is one in relation to which fingerprints may be taken.

(2) A person does not contravene subsection (1) if the police officer who requested the personal details does not comply with section 18(2).

(3) A person does not contravene subsection (1) if the police officer—

(a) on request under section 19, refuses or fails to comply with the request; and

(b) has not previously stated to the person the name, rank and place of duty of the police officer.

21 Offence to state false or misleading personal details A person must not state personal details that the person knows are false or misleading in a material particular in response to a request made in accordance with section 18.


Note

Section 63 provides that an offence against this provision is one in relation to which fingerprints may be taken.



29

22 Offence for police officer not to state details (1) Subject to subsection (2), a police officer must not

refuse or fail to comply, in writing if so requested, with a request for name, rank and place of duty under section 19.


(2) A police officer does not contravene subsection (1) if—

(a) the police officer has already stated name, rank and place of duty to the person in response to a request under section 19; or

(b) the refusal or failure to comply is reasonable in all the circumstances.

23 Offence for police officer to state false or misleading details

A police officer must not state a name, rank or place of duty that the police officer knows is false or misleading in a material particular in response to a request under section 19.


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Part 3.1—Custody and Questioning—General


30

CHAPTER 3—CUSTODY AND QUESTIONING

PART 3.1—CUSTODY AND QUESTIONING—GENERAL

24 No power to detain person not under arrest Except as provided by a questioning order, nothing in this Chapter confers a power to detain a person against the will of the person if the person is not under arrest.

25 How long person may be detained in custody (1) A person who is taken into custody for an offence

(whether committed in Victoria or elsewhere) must, within a reasonable time after being taken into custody—

(a) be released unconditionally; or

(b) be released on bail; or

(c) be brought before a bail justice or the Magistrates' Court.

(2) In determining what constitutes a reasonable time for the purposes of subsection (1), the following matters may be considered—

(a) the period of time reasonably required to bring the person before a bail justice or the Magistrates' Court;

(b) the number and complexity of offences to be investigated;

(c) any need of an investigating official to read and collate relevant material or to take any other steps that are reasonably necessary by way of preparation for questioning the person or the investigation;

(d) any need to transport the person from the place of arrest to a place where facilities are available to conduct an interview or investigation;



31

(e) the number of other people who need to be questioned during the period of custody in respect of the offence for which the person is in custody;

(f) any need to visit the place where the offence is believed to have been committed or any other place reasonably connected with the investigation of the offence;

(g) any time taken to communicate with a legal practitioner, consular office, friend, relative, parent, guardian, spouse, domestic partner or independent person;

(h) any time taken by a legal practitioner, consular officer, interpreter, parent, guardian, spouse, domestic partner or independent person to arrive at the place where the questioning or investigation is to take place;

(i) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to receive medical attention;

(j) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to rest;

(k) the total period of time during which the person has been in the company of an investigating official before and after the commencement of custody;

(l) any other matters reasonably connected with the investigation of the offence.

Note

In custody is defined in section 4.



32

(3) This section is subject to section 346 of the Children, Youth and Families Act 2005. Note

Section 346 of the Children, Youth and Families Act 2005 provides different requirements regarding children in custody.

26 Person may be questioned about offence for which the person is in custody

Within the reasonable time referred to in section 25, an investigating official may question a person in custody for an offence (whether committed in Victoria or elsewhere) or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.

27 Right to an interpreter If a person in custody does not have a knowledge of the English language that is sufficient to enable the person to understand the questioning or, because of a physical disability, is unable to communicate with reasonable fluency in the English language, an investigating official must—

(a) arrange for the presence of an interpreter before any questioning or investigation commences; and

(b) defer the questioning or investigation until an interpreter is present.



33

28 Person in custody must be informed of offence Before questioning a person in custody or carrying out investigations in which the person participates, an investigating official must inform the person of the circumstances of the offence that the person is suspected of having committed.

Note

Section 339 requires the information to be given orally and in language that is likely to be understood by the person.

29 Person in custody must be cautioned before questioning or investigation

Before any questioning (other than a request for the person's name and address) or investigation under this Chapter commences, an investigating official must inform the person in custody that the person does not have to say or do anything but that anything the person does say or do may be given in evidence.

30 Right to communicate with friend or relative, legal practitioner and consular office

(1) A person in custody—

(a) may communicate with, or attempt to communicate with, a friend or relative to inform that person of the whereabouts of the person in custody; and

(b) may communicate with, or attempt to communicate with, a legal practitioner (whether the term legal practitioner or lawyer is used); and

(c) if the person in custody is not a citizen or permanent resident of Australia, may communicate with, or attempt to communicate with, the consular office of the country of which the person is a citizen.



34

(2) An investigating official must inform a person in custody of the rights referred to in subsection (1) before any questioning or investigation commences.

31 Children and incapable persons (1) Subject to section 33, if a person in custody is a

child or an incapable person, an investigating official must not question the person or carry out an investigation in which the person participates unless subsection (2) and section 32 are satisfied.

(2) At any questioning or investigation of a child or incapable person who is in custody, one of the following persons must be present—

(a) in the case of a child—

(i) a parent or guardian of the child; or

(ii) if each parent or the guardian is unavailable or cannot be located or is an incapable person, an independent person;

(b) in the case of an incapable person—

(i) the spouse or domestic partner of the incapable person; or

(ii) if the spouse or domestic partner is unavailable or cannot be located or is also an incapable person, a parent or guardian of the incapable person; or

(iii) if the incapable person does not have a spouse or domestic partner, a parent or guardian of the incapable person; or

(iv) if each parent or the guardian is unavailable or cannot be located or is also an incapable person, an independent person.



35

32 Exercise of right to communicate Subject to section 33, if a person in custody wishes to communicate with a friend, relative, legal practitioner or consular office, the investigating official who has custody of the person must—

(a) afford the person reasonable facilities as soon as practicable to enable the person to make, or attempt to make, the communication; and

(b) defer the questioning and investigation for a reasonable period of time to enable the person to make, or attempt to make, the communication; and

(c) in the case of communication with the person's legal practitioner or a clerk of the legal practitioner, or communication by a child or incapable person with a person present in accordance with section 31(2), allow the communication to occur in circumstances in which, as far as practicable, it will not be overheard; and

(d) allow the person's legal practitioner or a clerk of the legal practitioner to communicate with the person in the circumstances referred to in paragraph (c).

33 Compliance unnecessary in certain circumstances (1) An investigating official need not comply with

section 31(2) or 32 if the investigating official believes on reasonable grounds that—

(a) the communication with the friend, relative, legal practitioner, consular office, parent, guardian, spouse or domestic partner (as the case requires) would result in the escape of an accomplice or the fabrication or destruction of evidence; or



36

(b) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed.

(2) If an investigating official decides not to comply with section 31(2) or 32, the investigating official must inform the person in custody of that decision before any questioning or investigation commences.

34 Caution and information about rights to be recorded

An investigating official who is required by section 29 or 30(2) to give a person in custody certain information must record the giving of that information and the person's responses, if any—

(a) by audio recording or audiovisual recording if—

(i) the person is to be questioned or is to participate in an investigation under Part 3.2; and

(ii) the person is in custody in relation to an indictable offence; and

(iii) it is practicable to make the recording; or

(b) by audiovisual recording if the person is to be questioned or is to participate in an investigation under Part 3.2.

Notes

1 Part 3.3 provides that if an admission made to an investigating official is not recorded, it will only be admissible in exceptional circumstances.

2 Part 7.3 sets out the requirements for service of copies of recordings and transcripts of recordings.



37

35 Questioning or investigation to be recorded Subject to section 42, an audiovisual recording or an audio recording must be made of the whole of any questioning or investigation (including everything said or done by the person in custody) of a person suspected of having committed an indictable offence.

Notes

1 The obligation to record applies whether the questioning takes place with the detainee's informed consent or in accordance with a court order.

2 Part 7.3 provides for the service of copies of recordings and transcripts of recordings.

36 Certain offences against Road Safety Act 1986 Sections 27, 30, 31 and 32 do not apply to questioning or an investigation in relation to an offence against section 49(1) of the Road Safety Act 1986.

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Part 3.2—Questioning for Other Offence


38

PART 3.2—QUESTIONING FOR OTHER OFFENCE

Division 1—General

37 Definitions In this Part—

detained person does not include a compulsory patient within the meaning of the Mental Health Act 2014;

detainee means a person referred to in section 38;

court means—

(a) the Magistrates' Court; or

(b) if an application is in respect of a person who is under the age of 19 years when the application is made, the Children's Court;

investigating official, in relation to an offence committed outside Victoria, includes an interstate investigating official; Note

Part IC of the Crimes Act 1914 of the Commonwealth applies if the interstate investigating official is a member of the Australian Federal Police.

offence includes an offence against a law of the Commonwealth or another State or a Territory.

38 Application of Part (1) Subject to subsection (2), this Part applies to the

questioning or investigation of a detained person who is reasonably suspected of having committed (whether in Victoria or elsewhere) an offence other than the offence for which the person is being held.



39

(2) If the detained person was of or over the age of 10 years but under 18 years at the time of the suspected commission of the offence, the offence must be an indictable offence.

39 Questioning of detainee (1) A detainee must not be questioned, or participate

in an investigation, about the involvement (if any) of the person in an offence other than the offence for which the detainee is being held except—

(a) by consent in accordance with Division 2; or

(b) in accordance with a questioning order under Division 3.

Notes

1 Part IC of the Crimes Act 1914 of the Commonwealth applies to the investigation of a Commonwealth offence within the meaning of that Part.

2 Section 41 of the Corrections Act 1986 provides for visits by the police to prisoners, which may include questioning to which this Part does not apply.

(2) Sections 27, 28, 29, 30, 31, 32, 34 and 35 apply to questioning or investigation of a detainee under this Part as if the detainee were in custody.

Division 2—Questioning for other offence by consent

40 Certain detainees may be questioned etc. by consent (1) An investigating official may—

(a) question a detainee who is held in a prison or police gaol about the involvement (if any) of the detainee in an offence other than the offence for which the detainee is being held; or



40

(b) carry out investigations in which the detainee participates—

if the detainee—

(c) is not a child or incapable person; and

(d) gives informed consent.

(2) A detainee must not be removed from the prison or police gaol in which the detainee is being held for the purposes of any questioning or investigation under subsection (1).

Notes

1 Held in a prison or police gaol is defined in section 3.

2 Questioning or investigations involving removal from prison may be authorised by a questioning order under section 47.

41 Informed consent to questioning or participating in investigations (suspect in detention)

For the purposes of section 40, a detainee gives informed consent if the detainee consents after an investigating official informs the detainee of the following matters—

(a) the offence in relation to which the detainee is a suspect;

(b) that if the person gives consent, the person does not have to say or do anything but that anything the person does say or do may be given in evidence;

(c) unless Part IC of the Crimes Act 1914 of the Commonwealth applies—

(i) the person's rights under sections 27 and 30;

(ii) that the person may exercise any applicable right under section 27 or 30 before deciding whether or not to give consent;



41

(d) that the person may refuse to consent;

(e) that, if the person gives consent, the person may withdraw that consent at any time before the questioning or participation in the investigations is completed but anything the person says or does before withdrawal of consent may be given in evidence;

(f) that if the person refuses to give consent, an application may be made to a court for an order and, if the court makes an order, the person may be delivered into the custody of the investigating official for the purpose of questioning or participation in the investigations.

Notes

1 Suspect is defined in section 3.


3 A person may withdraw consent under section 324.

4 Part 7.2 provides that informed consent and withdrawal of consent must be recorded.

42 Questioning or investigation to be recorded An audiovisual recording must be made of the whole of any questioning or investigation (including everything said or done by the detainee) that takes place under section 40.

Notes

1 The obligation to record applies whether the questioning takes place with the detainee's informed consent or in accordance with a court order.

2 Part 7.3 provides for the service of copies of recordings and transcripts of recordings.



42

Division 3—Questioning for other offence under questioning order

43 Application for questioning order An investigating official may apply to the court for an order under section 47 directing that a detainee be delivered into the custody of the investigating official for the purpose of questioning or investigation in respect of an offence other than the offence for which the detainee is being held.

Notes

1 Part 7.1 sets out requirements for the form and notice of an application for an order.

2 Section 319 sets out who must be present during the hearing of an application.

44 Court may order detainee's attendance (1) At any time after an application for a questioning

order is filed, the court may order that the detainee who is the subject of the application be brought before the court for the hearing of the application.

(2) While an order under subsection (1) is being carried out, the detainee is taken to be in the legal custody of the person acting under the order.

45 Detainee must have opportunity to obtain legal assistance

(1) Subject to subsection (2), if a detainee who is the subject of an application for a questioning order is not legally represented on the hearing of the application, the court—

(a) must adjourn the hearing to enable the detainee to obtain legal representation; and

(b) must not resume the hearing until the detainee is legally represented.



43

(2) Subsection (1) does not apply if the court is satisfied that the detainee has been given, or has refused to be given, legal advice in relation to the application.

46 Court may order legal assistance (1) The court may order Victoria Legal Aid to

provide legal assistance of a kind to which section 26(1) of the Legal Aid Act 1978 applies to a detainee who is the subject of an application for a questioning order.

(2) Despite anything to the contrary in the Legal Aid Act 1978, Victoria Legal Aid must provide legal assistance in accordance with an order under subsection (1).

47 Determination of application for questioning order (1) Subject to section 48, on an application under

section 43, the court may order that the detainee be transferred into the custody of the applicant for the purpose of questioning or investigation concerning the involvement (if any) of the detainee in an offence other than the offence for which the detainee is being held if the court is satisfied that it is in the interests of justice to do so.

(2) Subject to subsection (3), a questioning order must specify the maximum period of time during which the applicant may take custody of the detainee.

(3) The maximum period of time specified under subsection (2) must be a reasonable period within which the questioning or investigation may take place, having regard to—

(a) the matters specified in section 25, with any necessary modifications; and

(b) if the detainee is a child, the detainee's age.



44

(4) Questioning or investigation under a questioning order must occur at the place at which the detainee was held at the time when the application for the questioning order was made unless the court includes a condition under subsection (5).

(5) The court may include in the order any conditions that it thinks fit concerning the place where and the circumstances under which the questioning or investigation may take place if the court considers that—

(a) questioning or investigation at the place referred to in subsection (4) is not practicable; or

(b) it is appropriate for the questioning or investigation to occur elsewhere.

(6) A questioning order has effect as a suspension of a direction in a warrant of commitment or a warrant to imprison to deliver a person to the place of detention specified in the warrant or to hold a person in that place (as the case requires).

48 When court must consider whether detainee fit for questioning

(1) Unless the court is satisfied that the detainee is fit to be questioned, the court must not make a questioning order in respect of a detainee who is—

(a) a forensic resident or security resident in a residential service, residential institution or residential treatment facility within the meaning of the Disability Act 2006; or

(b) a patient within the meaning of the Mental Health Act 2014; or

(c) an incapable person.



45

(2) In determining whether or not a detainee is fit to be questioned, the court must—

(a) consider any known likely psychological effect of the questioning on the detainee; and

(b) receive evidence (whether oral or written) given by a medical practitioner on the fitness of the detainee to be questioned.

(3) For the purposes of subsection (1), a detainee is not fit to be questioned if, because the detainee's mental processes are disordered or impaired, the detainee is or, at some time during the questioning, is likely to be—

(a) unable to understand the nature of the questioning (namely that it is questioning to ascertain the involvement, if any, of the detainee in the commission of an offence); or

(b) unable to follow the course of questioning; or

(c) unable to give instructions to the legal practitioner of the detainee; or

(d) unable to understand that the detainee does not have to say or do anything but that anything the detainee does say or do may be given in evidence.

49 Court must impose particular conditions in respect of certain detainees

(1) On making a questioning order in respect of a detainee referred to in section 48(1) or a child, the court—

(a) subject to subsection (2), must include in the order a condition that an independent person is to be present while any questioning or investigation takes place; and



46

(b) may include in the order any other condition that the court thinks fit in the interests of the wellbeing of the detainee during any questioning or investigation.

(2) The court need not include a condition referred to in subsection (1)(a) in a questioning order in respect of a detainee referred to in section 48(1) if—

(a) the detainee applies to the court for that condition not to be included in the order; and

(b) the court is satisfied that, in all the circumstances, it is appropriate not to include it.

50 Court must inform detainee On making a questioning order, the court must inform the detainee who is the subject of the order—

(a) that the investigating official must caution the detainee and inform the detainee that the detainee may communicate with, or attempt to communicate with, a friend or relative and a legal practitioner and, if applicable, a consular office; and

(b) if the detainee is a child or incapable person, that a parent or guardian, spouse or domestic partner or an independent person must be present at any questioning or investigation; and

(c) that the investigating official must—

(i) afford the detainee reasonable facilities and defer questioning to enable the detainee to make, or attempt to make, the communication; and



47

(ii) allow the communication to occur in circumstances in which, as far as practicable, it will not be overheard; and

(iii) allow the person's legal practitioner or law clerk to communicate with the detainee; and

(iv) allow a detainee who is a child or an incapable person to communicate with the parent, guardian, spouse or domestic partner or independent person who is present for the questioning or investigation; and

(d) if the detainee does not have a knowledge of the English language sufficient to understand the questioning, that the investigating official must arrange for the presence of a competent interpreter before any questioning or investigation commences; and

(e) if the detainee was held in a prison or police gaol at the time of the application, that the making of the questioning order does not prevent a senior police officer from authorising the conduct of a non-intimate forensic procedure under section 121.

51 Further questioning orders

(1) Subject to subsection (2), the court may make further questioning orders in respect of a detainee in relation to the same offence or a different offence.

(2) The court must not make a further questioning order in respect of a detainee in relation to the same offence unless the court is satisfied that there is a reasonable prospect that further questioning or investigation will assist in



48

determining the involvement (if any) of the detainee in the commission of the offence.

52 Application for extension of questioning order Before the expiry of a questioning order or any extension of a questioning order, an investigating official may apply to the court for an order extending the questioning order.

Notes



53 Determination of application for extension of questioning order

(1) On an application under section 52, the court may by order extend the period specified under section 47(2) in the questioning order if the court is satisfied that there is a reasonable prospect that further questioning or investigation will assist in determining the involvement (if any) of the detainee in the commission of the offence.

(2) Sections 47(2) and (3), 48 and 50 apply with any necessary modifications to an order under subsection (1).

54 Person to be returned to place of detention (1) An investigating official questioning or

investigating a detainee under a questioning order must deliver the detainee to the place of detention at the earlier of—

(a) the expiry of the questioning order; or

(b) the cessation of questioning.



49

(2) In subsection (1)—

the place of detention means the place where the detainee was held at the time of the application for the questioning order or the latest application for extension of the order.

55 Questioning order does not prevent authorisation under section 121

The making of a questioning order does not prevent a senior police officer from authorising the conduct of a non-intimate forensic procedure on the detainee under section 121.

__________________

Part 3.3—Evidence of Admissions and Certain Other Evidence


50

PART 3.3—EVIDENCE OF ADMISSIONS AND CERTAIN OTHER EVIDENCE

56 Application of Part This Part applies to an admission made to an investigating official by a person who—

(a) was suspected of having committed an offence; or

(b) ought reasonably to have been suspected of having committed an offence.

Note

Suspect is defined in section 3.

57 When evidence of admission is inadmissible Evidence of an admission referred to in section 56 is inadmissible in proceedings for an indictable offence against the person who made the admission except as provided by sections 58 and 59.

58 Evidence of admission admissible if recording available

Evidence of an admission referred to in section 57 is admissible if the admission is recorded as follows and the recording is available to be tendered in evidence—

(a) in the case of an admission made before the commencement of questioning or during questioning at a place where facilities were not available to conduct an interview—

(i) the admission was recorded by audio recording or audiovisual recording; or

(ii) the substance of the admission was confirmed by the person who made the admission and the confirmation was recorded by audio recording or audiovisual recording; or



51

(b) in the case of an admission made during questioning at a place where facilities were available to conduct an interview—the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording; or

(c) in the case of an admission made during questioning under Part 3.2, the questioning and anything said by the person questioned was recorded by audiovisual recording.

Notes

1 A recording may be made in accordance with requirements in Chapter 3, 4 or 5.

2 Section 328 provides for the service of copies of recordings and transcripts of recordings.

59 Court may admit evidence of admission in exceptional circumstances

Evidence of an admission is admissible if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances—

(a) are exceptional; and

(b) justify admitting the evidence.

60 Use of recordings in proceeding for summary offence

Nothing in this Part prevents the use of an audio recording or an audiovisual recording in a proceeding for a summary offence.

61 Right to remain silent not affected Nothing in this Act affects the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations except where required to do so by or under an Act or a Commonwealth Act.



52

62 Operation of Evidence Act 2008 Except as provided by this Part, this Part does not affect the operation of the Evidence Act 2008.

__________________

Part 4.1—General


53

CHAPTER 4—FINGERPRINTS

PART 4.1—GENERAL

63 Offences for which fingerprints of suspect may be taken

The following offences are offences in relation to which fingerprints may be taken from a suspect—

(a) an indictable offence;

(b) a summary offence where the maximum penalty (whether for a first or subsequent offence) is or includes a period of imprisonment;

(c) an offence against section 20(1) or 21;

(d) an offence against section 6(2) of the Control of Weapons Act 1990;

(e) an offence against section 3(2) or 3(10) of the Court Security Act 1980;

(f) an offence against section 36A of the Drugs, Poisons and Controlled Substances Act 1981;

(g) an offence against section 255 or 256 of the Victoria Police Act 2013;

(h) an offence against section 20, 24ZQ(3), 24ZR(1), 24ZR(2), 24ZR(3), 24ZS(1), 24ZS(2) or 35(6) of the Prevention of Cruelty to Animals Act 1986.

64 Children under the age of 10 years (1) A child who is under the age of 10 years and is

suspected of having engaged in conduct (whether by act or omission) which would have constituted an offence had the child been of the age of criminal responsibility must not—

Part 4.1—General


54

(a) be requested to give fingerprints; or

(b) have fingerprints taken.

(2) A police officer must not request that the fingerprints of a child referred to in subsection (1) be taken.

65 Other fingerprinting not affected Nothing in this Act affects fingerprinting by a police officer that is regulated by any other Act or law.

__________________

Part 4.2—Obtaining Fingerprints From Suspect


55

PART 4.2—OBTAINING FINGERPRINTS FROM SUSPECT

Division 1—Suspect aged 15 years or above

66 When fingerprints may be taken from suspect aged 15 years or above

Fingerprints must not be taken from a person of or over the age of 15 years who is a suspect in relation to an offence referred to in section 63 unless—

(a) a police officer gives the person the information referred to in section 90; and

(b) the fingerprints are to be taken—

(i) to identify the person; or

(ii) to execute a warrant; or

(iii) because the fingerprints have forensic relevance.

Note

Forensic relevance is defined in section 3.

Division 2—Suspect aged 10–14 years

67 Definition In this Division—

child suspect means a child of or over the age of 10 years but under the age of 15 years who is a suspect in relation to an offence referred to in section 63.

68 When fingerprints may be taken from child suspect Fingerprints must not be taken from a child suspect unless—

(a) the fingerprints are taken by consent in accordance with section 69; or



56

(b) the Children's Court makes an order under section 73.

69 Fingerprints taken by consent A police officer may take the fingerprints of a child suspect by consent if—

(a) the child suspect has given informed consent; and

(b) subject to section 72, a parent or guardian of the child suspect has given informed consent; and

(c) the fingerprints of the child have forensic relevance.

Notes

1 Forensic relevance is defined in section 3.

2 Part 7.2 sets out the requirements for informed consent and provides for withdrawal of consent.

70 Child suspect not to be asked to consent unless parent or guardian present

A police officer must not request a child suspect to give informed consent to the taking of the child's fingerprints unless a parent or guardian (other than an incapable person) of the child is present during the request and the giving of the information referred to in section 71.

71 Informed consent to fingerprinting (child suspect) For the purposes of section 69, a person gives informed consent if the person consents after a police officer informs the person of the following matters—

(a) the purpose for which the fingerprints are required;

(b) the offence in relation to which the child is a suspect;



57

(c) that the fingerprints and related fingerprint information may be compared with other fingerprints and fingerprint information;

(d) that the fingerprints and related fingerprint information may be used in evidence in court;

(e) that the fingerprints and related fingerprint information may be retained or destroyed in accordance with Part 4.7.

(f) that, if the person gives consent, the person may withdraw that consent at any time before the fingerprinting is completed but anything the person says or does before withdrawal of consent may be given in evidence;

(g) that the person may refuse to consent;

(h) that if the person refuses to give consent, an application may be made to a court for an order;

(i) that if a court makes an order, the child's fingerprints may be taken by a police officer or the officer in charge of the place where the child is being held.

Notes






58

72 Application for order A police officer may apply to the Children's Court for an order under section 73 directing that a child suspect's fingerprints be taken by a police officer if—

(a) consent under section 69 is not given or is withdrawn; or

(b) a parent or guardian is unavailable or cannot be located or is an incapable person.

Notes



73 Determination of application (1) On an application under section 72, the Children's

Court may make an order directing that a child suspect's fingerprints be taken by a police officer if the court is satisfied that—

(a) there are reasonable grounds to suspect that the child has committed an offence referred to in section 63; and

(b) either—

(i) the fingerprints are to be taken to identify the child; or

(ii) the fingerprints have forensic relevance; and

(c) in all the circumstances, the making of the order is justified.

Note

Section 92(2) provides that restrictions apply in relation to who may take fingerprints where the use of reasonable force has been authorised under that section.



59

(2) In considering whether the making of the order is justified, the Children's Court must take into account—

(a) the seriousness of the offence and the circumstances surrounding the commission of the offence; and

(b) the alleged degree of participation by the child suspect in the commission of the offence; and

(c) the age of the child suspect; and

(d) any other matter that the court considers relevant.

(3) If the Children's Court makes an order under this section in respect of a child suspect who is a detained person, the court must also order that the officer in charge of the place at which the child suspect is held must—

(a) take the fingerprints of the child suspect or cause them to be taken; and

(b) deliver the fingerprints to the applicant for the order within a period of time specified in the order.

(4) Fingerprints taken under subsection (1)(b)(i) are inadmissible as evidence in any proceeding.

Note

Section 94 contains signature requirements.

__________________

Part 4.3—Obtaining Fingerprints From Volunteer


60

PART 4.3—OBTAINING FINGERPRINTS FROM VOLUNTEER

74 Person may volunteer fingerprints to assist investigation

(1) Subject to this Part, a person other than a person referred to in section 79(1) may volunteer to give fingerprints for the purpose of assisting in the investigation of an offence specified by a police officer.

(2) Fingerprints may be taken from a person under this section if—

(a) the person or, if section 77 applies, a person referred to in that section has given informed consent; and

(b) that consent has not been withdrawn before the fingerprints are taken.

Notes

1 Section 76 sets out the requirements for informed consent for volunteers under this Part.

2 Section 96 provides that fingerprints obtained from a volunteer under this Part may be used only for the investigation and prosecution of the specified offence or any other purpose permitted by this Act.

75 Child not to be asked to consent unless parent or guardian present

A police officer must not request a child to give informed consent to the taking of the child's fingerprints under this Part unless a parent or guardian (other than an incapable person) of the child is present during the request and the giving of the information referred to in section 76.

76 Informed consent to fingerprinting (volunteer) For the purposes of section 74, a person gives informed consent to a request to volunteer to give fingerprints if the person consents after a police



61

officer informs the person of the following matters—

(a) that the fingerprints are to be taken for the purpose of assisting in the investigation of an offence specified by the police officer and for no other purpose;

(b) that the fingerprints and related fingerprint information will be destroyed—

(i) when they are no longer required for the purpose specified; or

(ii) if consent to retention of the fingerprints and fingerprint information is withdrawn;

(c) that the fingerprints and related fingerprint information may be used in evidence in court but cannot be used against the person;

(d) that the person may withdraw consent to the retention of the fingerprints and related fingerprint information at any time after the fingerprints are taken;

(e) that the person is under no obligation to consent.

Notes


2 A person may withdraw consent under section 324. Section 324(4) provides that a person who objects to or resists the taking fingerprints is taken to have withdrawn informed consent.




62

77 Meaning of informed consent if volunteer is a child or an incapable person

If a volunteer is a child or an incapable person, informed consent or withdrawal of that consent under this Part means—

(a) in the case of a child under the age of 10 years, the informed consent or withdrawal of that consent (as the case requires) of a parent or guardian of the child, unless that person is an incapable person;

(b) in the case of a child of or over the age of 10 years, the informed consent of—

(i) the child; and

(ii) a parent or guardian of the child, unless that person is an incapable person;

(c) in the case of a child of or over the age of 10 years, the withdrawal of consent of—

(i) the child; or

(ii) a parent or guardian of the child;

(d) in the case of an incapable person, the informed consent or withdrawal of that consent (as the case requires) of—


(ii) a parent or guardian of the incapable person—

unless that person is also an incapable person.

Note

Section 76 sets out the requirements for informed consent for volunteers under this Part.



63

78 Volunteering fingerprints does not exclude fingerprinting under other Parts of Chapter

The giving of fingerprints as a volunteer under this Part does not exclude the taking of fingerprints under any other Part of this Chapter.

79 Suspect cannot volunteer fingerprints under this Part

(1) A person who is a suspect for an offence referred to in section 63 cannot volunteer to give fingerprints under this Part.

(2) A police officer must not request a person referred to in subsection (1) to volunteer to give fingerprints under this Part.

Notes

1 Section 66 provides that a police officer does not require a suspect who is of or over the age of 15 years to give consent before the police officer may take the suspect's fingerprints.

2 Division 2 of Part 4.2 sets out the circumstances in which a child suspect who is of or over the age of 10 years but under the age of 15 years may give informed consent to a police officer taking the child suspect's fingerprints.

__________________

Part 4.4—Obtaining Fingerprints of Child or Incapable Person Who Does Not Volunteer and Is Not a Suspect


64

PART 4.4—OBTAINING FINGERPRINTS OF CHILD OR INCAPABLE PERSON WHO DOES NOT VOLUNTEER AND

IS NOT A SUSPECT

80 Definition In this Part—

court means the Magistrates' Court or, if an application is in respect of a child, the Children's Court.

81 Part does not apply to suspects This Part does not apply to a child or incapable person who is a suspect in relation to an offence referred to in section 63. Note

Section 64 prohibits the fingerprinting of a child under the age of 10 years because the child is not of the age of criminal responsibility, even if the child is suspected of having committed an offence. Section 64 also prohibits the making of a request for such fingerprinting.

82 Application for order A police officer may apply to the court for an order under section 83 authorising the taking of the fingerprints of a child or an incapable person for the purpose of assisting in the investigation of an offence specified in the application if—

(a) consent under Part 4.3 is not given or is withdrawn; or

(b) a parent, guardian, spouse or domestic partner (as the case requires) is unavailable or cannot be located or is an incapable person.

Notes





65

83 Determination of application (1) On an application under section 82, the court may

order that a police officer may take the fingerprints of a child or an incapable person for the purpose of assisting in the investigation of the offence specified in the application.

(2) The court must not make an order under subsection (1) unless the court is satisfied that—

(a) either—

(i) consent under Part 4.3 has been requested but has not been given or has been withdrawn and there are reasonable grounds to believe that a parent or guardian of the child or a parent, guardian, spouse or domestic partner of the incapable person (as the case requires) is a suspect in relation to the offence specified in the application; or

(ii) a parent or guardian of the child or a parent, guardian, spouse or domestic partner of the incapable person (as the case requires) is unavailable or cannot be located or is an incapable person; and

(b) in all the circumstances and having regard to the seriousness of the offence specified in the application, the making of the order is justified.

(3) In considering whether or not to make an order under subsection (1), the court must take into account—

(a) the matters referred to in section 319(2)(a), (b), (c) and (d); and



66

(b) whether the fingerprints may assist with the investigation of the offence specified in the application.

Note

Section 96 provides that fingerprints obtained in accordance with this Part may be used only for the purpose of assisting in the investigation and prosecution of the offence specified in the application or any other purpose permitted by this Act.

__________________

Part 4.5—Conduct of Fingerprinting


67

PART 4.5—CONDUCT OF FINGERPRINTING

Division 1—Who may take fingerprints

84 Who may take fingerprints (1) The fingerprints of a person that are authorised by

this Chapter to be taken may be taken by—

(a) a police officer; or

(b) a person, or a person belonging to a class of persons, authorised under section 85 to do so.

(2) A person referred to in subsection (1)(b) may take fingerprints only at the direction of a police officer.

85 Chief Commissioner may authorise person to take fingerprints

(1) The Chief Commissioner of Police may authorise a person to take fingerprints in accordance with this Part if the Chief Commissioner is satisfied that the person—

(a) is appropriately qualified; or

(b) has successfully completed appropriate training.

(2) An authorisation under subsection (1) must be in writing.

Division 2—Who must be present when fingerprints are taken

86 Persons who must be present when fingerprinting child or incapable person

A person must not take the fingerprints of a child or an incapable person in accordance with this Chapter unless one of the following persons is present—



68









Note

Independent person is defined in section 3.

87 Taking of fingerprints not to be obstructed

(1) A police officer may direct a person present in accordance with section 86 to leave the place where the fingerprints are being taken if the person interferes with or obstructs the taking of the fingerprints.

(2) A police officer, with any assistance that the police officer considers necessary, may use reasonable force to remove a person who does not leave when directed to do so under subsection (1).



69

(3) If a person has been directed to leave under subsection (1), the fingerprinting may continue in the absence of that person.

Division 3—Taking of fingerprints

88 Fingerprints may be taken or recorded by any method or device

The fingerprints of a person that are authorised by this Chapter to be taken may be taken by any method or device to obtain a record of the fingerprints.

Example

Fingerprints may be taken by a scanning device to obtain a digital record of the fingerprints.

89 Detention for taking of fingerprints If a person is to have fingerprints taken in accordance with section 66 or an order under section 73 or 83, a police officer may detain the person for as long as is reasonably necessary to permit the taking of the fingerprints.

90 Police officer must inform person of certain matters (1) Before fingerprints of a person are taken under

section 66, a police officer must inform the person of the following—

(a) the purpose for which the fingerprints are required;

(b) the offence in relation to which the person is a suspect;

(c) that the fingerprints may be used in evidence in court;

(d) that if the person refuses to comply with the taking of the fingerprints, a police officer may use reasonable force to obtain them;



70

(e) that the fingerprints and related fingerprint information may be compared with other fingerprints and fingerprint information;

(f) that the fingerprints may be retained if retention is authorised by Part 4.7 or must be destroyed if destruction is required by Part 4.7.

(2) If the person from whom fingerprints are required is a child of or over the age of 15 years or an incapable person, one of the persons referred to in section 86 must be present when the person is informed that the person's fingerprints will be taken and during the giving of the information referred to in subsection (1).

Note

Section 339 requires the information to be given orally and in language that is likely to be understood by the person.

91 Giving of information to be recorded A police officer who gives a person information in accordance with section 90 must record the giving of the information and the person's responses, if any—

(a) if the person is in custody in relation to an indictable offence, by audio recording or audiovisual recording; or

(b) in any other case, by audio recording or audiovisual recording or in writing signed by the person.

Note

Part 7.3 provides for the certification and provision of copies and transcripts of recordings.



71

92 Police officer may use reasonable force on suspect (1) A police officer, with any assistance that the

police officer considers necessary, may use reasonable force to take the fingerprints of a person referred to in section 66 or a person subject to an order for fingerprinting under section 73 or 83 if—

(a) the person refuses to comply with the taking of the fingerprints; and

(b) the use of reasonable force is authorised by—

(i) a police officer in charge of a police station at the time of the request; or

(ii) a senior police officer. Note

Section 3 provides that senior police officer means a police officer of or above the rank of senior sergeant.

(2) If the use of reasonable force has been authorised under subsection (1)(b), the person who is to take the fingerprints, if practicable—

(a) must be—

(i) subject to subparagraph (ii), a person of the same sex as the person to be fingerprinted; or

(ii) if the person to be fingerprinted identifies as a member of a particular gender, a person of that gender; and

(b) must not be involved in investigating the offence for which the fingerprints are to be taken.



72

93 Fingerprinting must be recorded or witnessed if use of reasonable force authorised

If the use of reasonable force has been authorised under section 92(1)(b), the taking of those fingerprints must be—

(a) recorded by audiovisual recording if it is practicable to do so; or

(b) witnessed by an independent person. Note

Part 7.3 sets out the requirements for service of copies of recordings and transcripts of recordings.

94 Order to be signed if the taking of fingerprints from child suspect is recorded or witnessed

(1) This section applies to the taking of fingerprints in accordance with an order under section 73.

(2) If an audiovisual recording is made of the taking of the fingerprints, the person who made the recording must write on the order the name of the person and sign the order.

(3) If the taking of the fingerprints is witnessed by an independent person, the witness must write on the order the name of the witness and sign the order.

(4) The person who took the fingerprints must give a copy of the order so signed to the child suspect.

(5) The names and signatures required by this section may be made on a copy of the order transmitted by electronic communication.

__________________

Part 4.6—Use and Disclosure of Fingerprints


73

PART 4.6—USE AND DISCLOSURE OF FINGERPRINTS

95 When fingerprints and fingerprint information may be used or disclosed

(1) Subject to section 96, a person may use or disclose fingerprints and fingerprint information for one or more of the following purposes—

(a) comparison with other fingerprints or fingerprint information in the course of a criminal investigation if the person is—

(i) a police officer; or

(ii) any other person authorised in writing by the Chief Commissioner of Police;

(b) the investigation of an offence or offences generally;

(c) the identification of a missing or deceased person or an investigation into the circumstances surrounding the disappearance or death of a missing or deceased person (including comparison with other fingerprints and fingerprint information for this purpose);

(d) making the fingerprint information available to the person to whom the information relates;

(e) administering systems on which fingerprints and fingerprint information are stored;

(f) use in accordance with the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth or the Extradition Act 1988 of the Commonwealth;

(g) a coronial investigation or inquest;

(h) use for identification purposes in accordance with this Act;



74

(i) a decision whether to commence a proceeding for an offence;

(j) a proceeding for an offence;

(k) a civil proceeding (including a disciplinary proceeding) that relates to the way in which the fingerprinting was conducted;

(l) if the person to whom the fingerprint information relates consents in writing to the use or disclosure;

(m) an investigation of a complaint by—

(i) the Commissioner for Privacy and Data Protection appointed under section 96 of the Privacy and Data Protection Act 2014; or

(ii) the Health Services Commissioner within the meaning of the Health Records Act 2001 for the purposes of that Act; or

(iii) the Ombudsman appointed under the Ombudsman Act 1973; or

(iv) the IBAC; or

(v) an authority of a participating jurisdiction, but only if the authority would be entitled to the information under the corresponding law of the participating jurisdiction if the information were held in that jurisdiction;

(n) disseminating the information if it is already publicly available;

(o) use in accordance with any other provision of this Chapter.



75

(2) This section does not apply to fingerprint information that cannot be used to discover the identity of any person.

96 Fingerprints of volunteers etc. to be used only for investigation of specified offence

Despite section 95, fingerprints obtained in accordance with Part 4.3 or 4.4 and related fingerprint information may be used only for—

(a) the purpose of assisting in the investigation and prosecution of the offence specified under section 74(1) or 82(1) (as the case requires); or

(b) any other purpose permitted by this Act.

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Part 4.7—Destruction and Retention of Fingerprints and Fingerprint Information


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PART 4.7—DESTRUCTION AND RETENTION OF FINGERPRINTS AND FINGERPRINT INFORMATION



court, in relation to an application for a retention order, means—


(b) if an application is in respect of fingerprints taken from a person as a child and the person is under the age of 19 years at the time the application is made, the Children's Court;

destruction, in relation to a fingerprint, means—

(a) the physical destruction of the fingerprint; and

(b) the removal of related fingerprint information from any database on which comparison of fingerprints occurs; and

(c) the destruction of the fingerprint in any form that can readily be recombined with information that identifies the person from whom the fingerprint was taken.

98 When suspect's fingerprints must be destroyed (1) Subject to subsection (2) and section 107,

fingerprints taken from a person as a suspect and related fingerprint information must be destroyed—

(a) if a proceeding for a relevant offence has not commenced against the person within the period of 12 months after the taking of the



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fingerprints—within 28 days after the end of that period;

(b) if the person has been charged with a relevant offence within the period of 12 months after the taking of the fingerprints but the charge is discontinued, withdrawn or permanently stayed—within 28 days after the discontinuance, withdrawal or stay;

(c) if the person is acquitted or found not guilty of a relevant offence (other than because of mental impairment) or the charge for a relevant offence is dismissed—within 28 days after the end of the appeal period;

(d) if the person has been released on an undertaking under section 75 of the Sentencing Act 1991 in relation to a charge for a relevant offence—within 28 days after the dismissal of the charge under section 75(6) of that Act;

(e) if the person is pardoned in the exercise of the royal prerogative of mercy in relation to a relevant offence—within 28 days after the granting of the pardon;

(f) if section 99 applies—within 28 days after the person attains the age of 26 years;

(g) if a retention order is made—within 28 days after the date specified in the retention order;

(h) if a court refuses to make a retention order—within 28 days after the refusal.

(2) Subsection (1) does not apply if the person fingerprinted is charged with another relevant offence the outcome of which is not referred to in subsection (1).

Note

Relevant offence is defined in section 3.



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99 Destruction of fingerprints taken from a child (1) This section applies if—

(a) a person when a child was fingerprinted as a suspect under this Chapter or any corresponding previous enactment; and

(b) the fingerprints are not otherwise required to be destroyed under this Part; and

(c) the person is not found guilty of any further indictable offence before attaining the age of 26 years.

(2) Subject to subsection (3), fingerprints referred to in subsection (1) and related fingerprint information must be destroyed—

(a) within 28 days after the person attains the age of 26 years; or

(b) if a retention order is made—within 28 days after the date specified in the retention order; or

(c) if a court refuses to make a retention order—within 28 days after the refusal.

(3) Subsection (2) does not apply to fingerprints and related fingerprint information retained as a result of a finding of guilt of an offence punishable by level 4 imprisonment (15 years maximum) or more (however the penalty is described).

100 When volunteer's fingerprints must be destroyed

Fingerprints taken from a person as a volunteer and related fingerprint information must be destroyed within 28 days after—

(a) subject to paragraph (b), the fingerprints are no longer required for the purpose of assisting in the investigation and prosecution of the offence specified when the volunteer gave informed consent; or



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(b) consent to the retention of the fingerprints and related fingerprint information is withdrawn.

101 When fingerprints of child or incapable person taken under Part 4.4 must be destroyed

Fingerprints taken from a person in accordance with an order under section 83 and related fingerprint information must be destroyed within 28 days after the fingerprints are no longer required for the purpose of assisting in the investigation and prosecution of the offence specified in the order.

102 Fingerprints that may be retained indefinitely (1) Any fingerprints and related fingerprint

information not required to be destroyed under this Division may be retained indefinitely.

(2) If subsection (1) applies to fingerprints, any other fingerprints taken from the same person in the course of another investigation and related fingerprint information need not be destroyed, regardless of the outcome of that other investigation.

103 Notification of destruction (1) A person who has provided fingerprints, or

consented to the taking of fingerprints, may at any time request the Chief Commissioner of Police to inform the person whether—

(a) the fingerprints have been destroyed; and

(b) any related fingerprint information has been destroyed or de-identified.

(2) If this Part requires the destruction of the fingerprints referred to in a request under subsection (1), the Chief Commissioner of Police must inform the person who made the request whether—



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(a) the fingerprints have been destroyed; and

(b) any related fingerprint information has been destroyed or de-identified.

(3) A response under subsection (2) must be made—

(a) in writing; and

(b) within 14 days after the Chief Commissioner of Police receives the request under subsection (1).

104 Subsequent fingerprinting not prevented Nothing in this Part prevents the subsequent taking of fingerprints under this Act of a person whose fingerprints are required to be destroyed under this Part.

Division 2—Retention order for fingerprints of suspect

105 Application for retention order for fingerprints of suspect

At any time before destruction of fingerprints is required under section 98, a police officer may apply to the court for an order for the retention of the fingerprints of a suspect.

Notes



106 Determination of application

(1) On an application under section 105, the court may order that the fingerprints of a suspect be retained until a date specified in the order, being not more than 12 months after the date of destruction specified in section 98.



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(2) In determining whether to make an order under subsection (1), the court—

(a) must take into account the seriousness of the offence and the circumstances surrounding the commission of the offence; and

(b) must not make a retention order unless it is satisfied that, in all the circumstances, the making of the order is justified.

(3) Subsection (2)(a) does not limit the matters that the court may take into account in determining an application for a retention order.

(4) A retention order may be made more than once in relation to the same matter.

107 Fingerprints or information not to be destroyed pending determination of application

If an application for a retention order is made, the fingerprints to which the application relates, and any related fingerprint information, must not be destroyed or de-identified until the determination of the application.

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Part 4.8—Fingerprints for Identification Purposes


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PART 4.8—FINGERPRINTS FOR IDENTIFICATION PURPOSES

108 Fingerprints for identification purposes (1) If a person of or over the age of 15 years—

(a) has been charged with an offence referred to in section 63; and

(b) is present in a police station because of the charging or has been remanded in custody in relation to the charge—

a police officer may take the fingerprints of the person for the purpose only of identifying the person in order to facilitate the management of the person while in lawful custody. Note

Taking fingerprints of a suspect who is of or over the age of 10 years but under the age of 15 years for identification purposes may be authorised under Part 4.2.

(2) Before taking the fingerprints of a person under this section, a police officer must inform the person that the fingerprints—

(a) are to be taken only for the purpose of identifying the person; and

(b) are inadmissible as evidence.

(3) A police officer may use reasonable force to take the fingerprints of a person referred to in subsection (1) who refuses to allow them to be taken voluntarily if—

(a) the use of reasonable force is authorised by a police officer in charge of a police station at the time of the request or a senior police officer; and

(b) before taking the fingerprints of the person, the police officer informs the person that reasonable force may be used to obtain them.

Part 4.8—Fingerprints for Identification Purposes


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(4) If practicable, fingerprints taken under this section must be taken by—

(a) subject to paragraph (b), a person of the same sex as the subject; or

(b) if the subject identifies as a member of a particular gender, a person of that gender.

(5) Fingerprints taken under this section are inadmissible as evidence in any proceeding.

(6) Fingerprints taken under this section which are not required to be destroyed under Part 4.7 may be recorded on a computerised database by a person in the performance of official duties if the recording on that database by that person, or a person belonging to a class of persons, for that purpose is authorised under subsection (8).

(7) Fingerprints recorded under subsection (6) may be accessed, disclosed, communicated or made use of by a person in the performance of official duties if the accessing, disclosing, communicating or making use of fingerprints on that database by that person, or a person belonging to a class of persons, for that purpose is authorised under subsection (8).

(8) The Chief Commissioner of Police may authorise in writing a person, or a class of persons, in the performance of official duties—

(a) to record fingerprints on a computerised database; or

(b) to access, disclose, communicate or make use of fingerprints recorded on a computerised database.

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Part 4.9—Failure to Comply with Chapter


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PART 4.9—FAILURE TO COMPLY WITH CHAPTER

Division 1—When evidence of fingerprints is or may be inadmissible

109 Inadmissible evidence Fingerprints are, or fingerprint information is, inadmissible as evidence as part of the prosecution case in a proceeding against the subject for any offence if—

(a) the fingerprints were taken under Part 4.3 from a volunteer or under Part 4.4 from a person who did not volunteer and was not a suspect; or

(b) the fingerprints (or any record, copy or photograph of them) or fingerprint information were required to be destroyed under Part 4.7 but were not destroyed.

Note

Suspect is defined in section 3.

110 Inadmissible evidence that the court has discretion to admit

(1) A failure to comply with Part 4.2, 4.5 or 4.6 constitutes a contravention of the law for the purposes of the Evidence Act 2008.

(2) In the application of section 138 of the Evidence Act 2008, the probative value of the evidence does not by itself justify the reception of the evidence.

Division 2—Offences

111 Unauthorised use etc. of fingerprints or fingerprint information

A person must not use, analyse, copy or disclose fingerprints or fingerprint information (whether obtained under this Act or otherwise) in a way that



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is not authorised by this Act knowing that the use, analysis, copying or disclosure is not authorised by this Act or believing that the use, analysis, copying or disclosure is probably not authorised by this Act.

Penalty: Level 7 imprisonment (2 years maximum).

112 Offences relating to destruction of fingerprints and fingerprint information

(1) The Chief Commissioner of Police must not fail to destroy fingerprints that are required by this Act to be destroyed, or cause them to be destroyed, within the relevant period specified in this Part, knowing that the fingerprints are required to be destroyed or believing that the fingerprints are probably required to be destroyed.


(2) A person must not use, analyse, copy or disclose fingerprints that are, or fingerprint information that is, required to be destroyed under this Part, knowing that the fingerprints are, or fingerprint information is, required to be destroyed or believing that the fingerprints are, or fingerprint information is, probably required to be destroyed.


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Part 5.1—General


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CHAPTER 5—FORENSIC PROCEDURES

PART 5.1—GENERAL

113 Application of Chapter Subject to section 116 and Part 5.4, this Chapter applies only in relation to indictable offences.

114 No request for forensic procedure except in accordance with Act

A police officer must not request a person to undergo a forensic procedure except in accordance with this Act.

115 Children under the age of 10 years (1) A child who is under the age of 10 years and is

suspected of having engaged in conduct (whether by act or omission) which would have constituted an offence had the child been of the age of criminal responsibility must not—

(a) undergo a forensic procedure; or

(b) be requested to undergo a forensic procedure.

(2) A police officer must not request that a forensic procedure be conducted on a child referred to in subsection (1).

116 Forensic procedure to obtain sample other than DNA sample

(1) If a forensic procedure to obtain a sample other than a DNA sample of the subject also collects a DNA sample of the subject, the DNA sample—

(a) must not be analysed to obtain DNA information; and

Part 5.1—General


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(b) is not subject to Parts 5.11, 5.12 and 5.13. Example

A DNA profile must not be derived from a sample obtained from a forensic procedure conducted for the purpose of obtaining gunshot residue or other chemical residue from a person's body. The sample is not subject to the retention and destruction provisions that apply to DNA samples.

(2) This Chapter does not apply to any other procedure or testing that is conducted to detect gunshot residue or any other chemical found—

(a) at a place where an offence was committed or is reasonably suspected of having been committed; or

(b) on an object reasonably suspected to have been associated with the commission of an offence.

117 Operation of other Acts Nothing in this Act affects the operation of any other Act or enactment with respect to the taking of samples from a person or the conduct of a physical examination of a person or the taking of a photograph of a person or part of a person.

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Part 5.2—Forensic Procedure on Suspect


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PART 5.2—FORENSIC PROCEDURE ON SUSPECT


118 When a forensic procedure may be conducted on a suspect

(1) Subject to subsection (2), a forensic procedure must not be conducted on an adult suspect unless—

(a) the suspect gives informed consent to a request under section 119; or

(b) a senior police officer gives an authorisation under section 121; or

(c) the Magistrates' Court makes an order under section 125 or an interim order under section 159.

(2) A forensic procedure must not be conducted on an adult suspect who is an incapable person unless the Magistrates' Court makes an order under section 125 or an interim order under section 159.

(3) A forensic procedure must not be conducted on a child suspect unless the Children's Court has made an order under section 125(2) or 159.

Notes


2 Section 115 prohibits the conduct of a forensic procedure on a child under the age of 10 years who is suspected of having engaged in conduct (whether by act or omission) which would have constituted an offence had the child been of the age of criminal responsibility. Section 115 also prohibits the making of a request for a forensic procedure on such a child.

3 Section 191 provides that a DNA profile obtained under this Part may be used for unlimited purposes, including inclusion on a DNA database system.

4 Sections 217 and 218 provide for the destruction and retention of DNA samples obtained under this Part, and DNA information derived from those samples.



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Division 2—Adult suspect may be requested to undergo a forensic procedure

119 When request for forensic procedure may be made (1) A police officer may request an adult suspect to

give informed consent to undergo a forensic procedure if any information or sample that may be obtained by the conduct of the forensic procedure has forensic relevance to the investigation of an indictable offence. Note


(2) A police officer must not request an incapable person who is a suspect to undergo a forensic procedure. Note

Section 124(1)(b) provides that a police officer may apply to the Magistrates' Court for an order directing an incapable person who is a suspect to undergo a forensic procedure.

(3) A police officer must not request a child suspect to undergo a forensic procedure. Note

Section 124(2) provides that a police officer may apply to the Children's Court for an order directing a child suspect to undergo a forensic procedure.

120 Informed consent to forensic procedure (adult suspect)

For the purposes of section 118(1)(a), a person gives informed consent if the person consents after a police officer informs the person of the following matters—

(a) the purpose for which the forensic procedure is required;

(b) the indictable offence in relation to which the person is a suspect;



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(c) that the person's DNA information will be placed on a DNA database system and may be compared with other DNA information;

(d) that the person's DNA information may be used for any purpose permitted by section 190 or under a corresponding law of a participating jurisdiction;

(e) that the forensic procedure may produce information that may be used in evidence in court;

(f) the nature of the forensic procedure sought to be conducted;

(g) that the person may request that the forensic procedure be conducted by or in the presence of a medical practitioner, nurse or midwife chosen by the person or, if the procedure is the taking of a dental impression, a dentist chosen by the person;

(h) that the person's DNA sample and related DNA information may be retained or destroyed in accordance with Part 5.13;

(i) that, if the person gives consent, the person may withdraw that consent at any time before the forensic procedure is completed but anything the person says or does before withdrawal of consent may be given in evidence;

(j) that the person may refuse to consent;

(k) that, if the person refuses to give consent, an application may be made to a court for an order or, in the case of a non-intimate forensic procedure, to a senior police officer for authorisation to conduct the procedure;



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(l) that, if a court makes an order or a senior police officer authorises a non-intimate forensic procedure, the person may be detained for the purpose of conducting the forensic procedure.

Notes




Division 3—Police may authorise forensic procedure on adult suspect

121 Senior police officer may authorise non-intimate forensic procedure for certain adults

(1) On request from a police officer, a senior police officer may authorise the conduct of a non-intimate forensic procedure on a person if the senior police officer is satisfied that—

(a) the person is a suspect in relation to the offence in relation to which the authorisation is sought and the offence is an indictable offence; and

(b) the person is—

(i) under lawful arrest; or

(ii) in the custody of an investigating official in accordance with a questioning order and, at the time of the application for that order, the person was held in a prison or police gaol; and

(c) the person is not a child or an incapable person; and



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(d) the person has refused to give consent to a request under section 119, or has withdrawn consent, to undergo the procedure; and

(e) any information or sample to be obtained by the conduct of the procedure has forensic relevance; and

(f) in all the circumstances, the giving of the authorisation is justified.

Notes

1 Held in a prison or police gaol is defined in section 3.

2 Section 3 provides that senior police officer means a police officer of or above the rank of senior sergeant.

(2) Before deciding whether to give or refuse to give an authorisation, the senior police officer must allow the suspect or the suspect's legal practitioner a reasonable opportunity to inform the senior police officer (if practicable, in person) whether there is any reason why the non-intimate forensic procedure should not be conducted.

(3) A senior police officer must not give an authorisation under this section if—

(a) the senior police officer is involved in the investigation of the offence for which the procedure is required; or

(b) a court has refused to make an order under this Chapter in respect of the same person in relation to the same investigation on an application made on substantially the same grounds; or

(c) a senior police officer has refused to give an authorisation under this section in respect of the same person in relation to the same investigation on a previous request made on substantially the same grounds.



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(4) An authorisation given in contravention of subsection (3) is invalid.

(5) A failure of the senior police officer to comply with subsection (2) does not invalidate an authorisation made by the senior police officer.

(6) Nothing in subsection (3) prevents a later application for an order under this Chapter or an authorisation under this section being made on different or further grounds.

122 When senior police officer authorises procedure (1) An authorisation under section 121 must be given

in writing signed by the senior police officer giving it and include—

(a) the date and time when the authorisation is given; and

(b) the reasons for giving the authorisation; and

(c) the non-intimate forensic procedure that is authorised.

(2) A senior police officer who gives an authorisation under section 121 must give, or cause another police officer to give, to the suspect a copy of the authorisation as soon as practicable and in any event before the conduct of the forensic procedure.

(3) A failure of the senior police officer or a police officer to comply with this section does not invalidate an authorisation under section 121.

123 When senior police officer does not authorise procedure

If a senior police officer refuses to give an authorisation under section 121, the senior police officer must—



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(a) inform, or cause another police officer to inform, the suspect of the decision as soon as practicable after the refusal; and

(b) serve written notice of the decision, by personal service, on the suspect within 7 days after the refusal.

Division 4—Court may order a forensic procedure

124 Application for order (1) A police officer may apply to the Magistrates'

Court for an order under section 125 directing an adult who is a suspect in relation to an indictable offence to undergo a forensic procedure if the adult—

(a) has refused to give consent to a request under section 119, or has withdrawn consent, to undergo the procedure; or

(b) is an incapable person.

(2) A police officer may apply to the Children's Court for an order under section 125 directing a child who is a suspect in relation to an indictable offence to undergo a forensic procedure.

Notes



125 Determination of application (1) On an application under section 124, the

Magistrates' Court may make an order directing an adult to undergo a forensic procedure if the court is satisfied that—

(a) the person is an adult; and



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(b) the person is a suspect in relation to the indictable offence in relation to which the application is made; and

(c) any information or sample to be obtained by the conduct of the procedure has forensic relevance; and

(d) the adult—

(i) has refused to give consent to a request under section 119, or has withdrawn consent, to undergo the procedure; or

(ii) is an incapable person; and

(e) in all the circumstances, the making of the order is justified.

(2) On an application under section 124, the Children's Court may make an order directing a child to undergo a forensic procedure if the court is satisfied that—

(a) the child is of or over the age of 10 years; and

(b) the child is a suspect in relation to the indictable offence in relation to which the application is made; and

(c) any information or sample to be obtained by the conduct of the procedure has forensic relevance; and

(d) in all the circumstances, the making of the order is justified.

(3) In considering whether the making of the order is justified, the Children's Court must take into account—

(a) the seriousness of the offence and the circumstances surrounding the commission of the offence; and



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(b) the alleged degree of participation by the child in the commission of the offence; and

(c) the age of the child; and


Notes

1 Section 191 provides that a DNA profile obtained under this Part may be used for unlimited purposes, including inclusion on a DNA database system.

2 Sections 217 and 218 provide for the destruction and retention of DNA samples obtained under this Part, and DNA information derived from those samples.

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Part 5.3—Covert Collection of DNA Sample


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PART 5.3—COVERT COLLECTION OF DNA SAMPLE

126 Authorisation required for analysis of covert DNA sample

A covert DNA sample collected in Victoria must not be analysed to produce a DNA profile of the person from whom it was collected unless a senior police officer gives a covert DNA sample authorisation.

Note

Section 3 provides that in this Part senior police officer means a police officer of or above the rank of superintendent.

127 Application for covert DNA sample authorisation (1) A police officer may apply to a senior police

officer for a covert DNA sample authorisation.

(2) An application under subsection (1) must be in writing signed by the applicant and specify—

(a) the person in respect of whom the covert DNA sample authorisation is sought; and

(b) the age or apparent age of the person; and

(c) the indictable offence under investigation; and

(d) the reasons why it is or was inappropriate to seek a forensic procedure under another Part of this Act; and

(e) whether the person—

(i) has been charged with the offence under investigation; or

(ii) has refused a request to undergo a forensic procedure, whether as a volunteer or as a suspect; and

(f) whether an application for an authorisation under section 121 or for an order directing the person to undergo a forensic procedure or



98

to give a DNA sample in relation to the same investigation has been refused; and

(g) whether an application under this section has previously been made in respect of the same person in relation to the same, or substantially the same, investigation and, if so, whether a covert DNA sample authorisation was given or refused; and

(h) if the covert DNA sample has already been collected—

(i) the date and time at which the sample was collected; and

(ii) the manner of collection.

128 Senior police officer may give covert DNA sample authorisation

(1) On an application under section 127, a senior police officer may, subject to this section, authorise, for the purpose of investigating an indictable offence—

(a) the collection of a covert DNA sample from a specified person and the analysis of the sample to produce a DNA profile; or

(b) the analysis of a covert DNA sample already collected from a specified person to produce a DNA profile.

Note

Section 3 provides that senior police officer means a police officer of or above the rank of superintendent.

(2) A senior police officer may give an authorisation under subsection (1) if the senior police officer is satisfied that—

(a) the covert DNA sample has forensic relevance; and



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(b) the collection of a covert DNA sample is or was justified because it is or was inappropriate to seek a forensic procedure under another Part of this Act; and

(c) if the specified person is, or is reasonably suspected to be, a child, the indictable offence under investigation is an offence that is punishable by level 3 imprisonment (20 years maximum) or more (however the penalty is described) or by life imprisonment.

(3) In considering whether to give an authorisation under subsection (1), a senior police officer must take into account—

(a) the nature and seriousness of the offence under investigation; and

(b) whether conventional methods of investigation have been, or could be, used effectively in the investigation; and

(c) the extent to which a covert DNA sample would assist in the investigation of the offence; and

(d) any other matter that the senior police officer considers relevant.

(4) A senior police officer must not give an authorisation under subsection (1) if—

(a) the senior police officer is involved in the investigation for which the covert DNA sample is required; or

(b) the person in respect of whom the authorisation is sought—

(i) has been charged with the offence under investigation; or



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(ii) has refused a request to undergo a forensic procedure, whether as a volunteer or as a suspect; or

(c) a court has refused to make an order under this Chapter directing the person to undergo a forensic procedure or to give a DNA sample in relation to the same investigation or the investigation of a related offence; or Note

Related offences is defined in section 3.

(d) a senior police officer has refused to give a covert DNA sample authorisation or an authorisation under section 121 in respect of the same person in relation to the same investigation or the investigation of a related offence.

(5) An authorisation under subsection (1) given in contravention of subsection (4) is invalid.

(6) An authorisation under subsection (1) must be given in writing signed by the senior police officer giving it and must specify—

(a) the date and time when the authorisation is given; and

(b) the period (not exceeding 28 days) during which the authorisation is in effect; and

(c) the offence under investigation; and

(d) the reasons for giving the authorisation.

(7) Nothing in subsection (4) prevents a later application under section 127 or an authorisation under this section being made on different or further grounds.



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129 Duration of covert DNA sample authorisation (1) A covert DNA sample authorisation comes into

effect when it is signed by the senior police officer giving it.

(2) A covert DNA sample authorisation expires at the end of the period specified in it under section 128(6)(b).

Note

Section 219 provides for destruction of covert DNA samples and extension of the periods for destruction.

130 Scope of covert DNA sample authorisation (1) A covert DNA sample authorisation authorises

any police officer to collect a covert DNA sample in accordance with the authorisation.

(2) A covert DNA sample authorisation does not authorise any illegal conduct or illegal activity by a police officer.

131 Details of collection or analysis of covert DNA sample to be recorded

A police officer who collects or analyses a covert DNA sample under a covert DNA sample authorisation must record in writing the following matters and provide a copy of the record to the Chief Commissioner of Police as soon as practicable after collection or analysis of the DNA sample—

(a) if the covert DNA sample authorisation authorised collection—

(i) the date and time when the covert DNA sample was collected; and

(ii) the method by which the covert DNA sample was collected; and



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(b) if the covert DNA sample authorisation authorised analysis, the date when the covert DNA sample was analysed.

Note

Section 335 requires the Chief Commissioner of Police to report to the IBAC regarding covert sampling.

132 Use of covert DNA sample of person subsequently charged with offence

If—

(a) a covert DNA sample is collected from a person or is analysed in accordance with a covert DNA sample authorisation in relation to the investigation of an indictable offence; and

(b) the person is subsequently charged with the indictable offence or a related offence—

the covert DNA sample is taken, on and from the charging, to have been obtained in accordance with Part 5.2.

Note


133 Information to be given on charging On the charging of a person referred to in section 132 from whom a covert DNA sample has been collected, a police officer must inform the person of the following matters—

(a) that a DNA sample has already been obtained by means of a covert DNA sample;

(b) that DNA information derived from the covert DNA sample may be placed on a DNA database system and may be used in evidence in court;



103

(c) that the covert DNA sample and any related DNA information may be retained or destroyed in accordance with Part 5.13.

134 Giving of information must be recorded A police officer who gives a person information in accordance with section 133 must record the giving of the information and the person's responses, if any—

(a) by audio recording or audiovisual recording; or

(b) if recording under paragraph (a) is not practicable, in writing signed by the person or, if the person refuses to sign and an independent person witnessed the matters recorded, the independent person.

Note

Part 7.3 provides for the service of copies of recordings and transcripts of recordings. Section 329 requires personal service of this recording.

135 Other forensic procedures Nothing in this Part precludes another forensic procedure being sought under another Part of this Act in respect of a person from whom a covert DNA sample has been collected.

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Part 5.4—Obtaining DNA Sample From Offender


104

PART 5.4—OBTAINING DNA SAMPLE FROM OFFENDER


court means the court that makes the finding referred to in paragraph (a), (b) or (c) of the definition of offender;

DNA sample offence means—

(a) an indictable offence; or

(b) an offence specified in the Schedule;

finding means a finding referred to in paragraph (a), (b) or (c) of the definition of offender;

offender means a person who—

(a) is found guilty of a DNA sample offence within the meaning of that term as then in force; or

(b) is found not guilty because of mental impairment of a DNA sample offence within the meaning of that term as then in force (other than an offence that is heard and determined summarily); or

(c) under section 17(1)(c) or 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, is found to have committed a DNA sample offence within the meaning of that term as then in force.

Note

An offender may be an adult or a child.

137 Application for order for DNA sample from offender

(1) The prosecutor or a police officer may apply to the court for an order under section 138 directing that a DNA sample be taken from an offender.



105

(2) An application under subsection (1) may be made at any time following the finding but not later than 6 months after the end of the appeal period.

(3) An application under subsection (1) need not specify the method by which the DNA sample will be taken.

Notes



138 Determination of application (1) On an application under section 137, the court

may make an order directing that a DNA sample be taken from an offender if the court is satisfied that, in all the circumstances, the making of the order is justified.

(2) In considering whether the making of the order is justified, the court must take into account—

(a) the seriousness of the offence and the circumstances surrounding the commission of the DNA sample offence of which the offender has been found guilty or not guilty because of mental impairment or which the offender has been found to have committed; and

(b) any other matter that the court considers relevant.

(3) An order under subsection (1) must include a direction—

(a) that the offender give a DNA sample as soon as practicable after the making of the order at a place nominated by the applicant; or



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(b) that the offender give a DNA sample at a time and place nominated by the applicant.

Notes

1 Section 172 provides for the detention of an offender for as long as is necessary to permit the giving of a DNA sample.

2 Division 4 of Part 5.11 restricts the analysis of an offender's DNA sample and use of any DNA information derived from it for a certain period.

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Part 5.5—Obtaining DNA Sample from Volunteer


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PART 5.5—OBTAINING DNA SAMPLE FROM VOLUNTEER

139 Suspect cannot volunteer DNA sample under this Part

(1) A person who is a suspect for an indictable offence cannot volunteer to give a DNA sample under this Part.

(2) A police officer must not request a person referred to in subsection (1) to volunteer to give a DNA sample under this Part.

Notes



140 Person may volunteer DNA sample to assist investigation

(1) A person, other than a person referred to in section 139(1), may volunteer to give a DNA sample for the purpose of assisting in the investigation of a specified offence.

(2) A DNA sample may be taken from a person under this section only if the person has given informed consent.

Notes

1 Section 199 restricts the use of any DNA information derived from a DNA sample taken in accordance with this Part.

2 Section 222 provides for the destruction of DNA samples taken in accordance with this Part and related DNA information.




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141 Meaning of consent if volunteer is a child or an incapable person

If a volunteer is a child or an incapable person, informed consent or withdrawal of that consent under this Part means—

(a) in the case of a child under the age of 10 years, the informed consent or withdrawal of that consent (as the case requires) of a parent or guardian of the child, unless that person is an incapable person;

(b) in the case of a child of or over the age of 10 years, the informed consent of—

(i) the child; and

(ii) a parent or guardian of the child, unless that person is an incapable person;

(c) in the case of a child of or over the age of 10 years, the withdrawal of consent of—

(i) the child; or

(ii) a parent or guardian of the child;

(d) in the case of an incapable person, the informed consent or withdrawal of that consent (as the case requires) of—


(ii) a parent or guardian of the incapable person—

unless that person is also an incapable person.



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142 Child not to be asked to consent unless parent or guardian present

A police officer must not ask a child to give informed consent to the taking of a DNA sample unless a parent or guardian of the child is present when—

(a) the request is made; and

(b) the information referred to in section 143 is given.

143 Informed consent to giving DNA sample (volunteer other than biological relative of missing person)

For the purposes of section 140, a person gives informed consent to a request to volunteer to give a DNA sample if the person consents after a police officer informs the person of the following matters—

(a) that the DNA sample is to be taken for the purpose of assisting in the investigation of an offence specified by the police officer and for no other purpose;

(b) that the DNA sample will be analysed and the DNA information will be used to assist in the investigation of the specified offence; and

(c) that the DNA sample and related DNA information will be destroyed—

(i) when they are no longer required for the purpose specified; or

(ii) if consent to retention of the DNA sample and related DNA information is withdrawn;

(d) that the DNA sample and related DNA information may be used in evidence in court but cannot be used against the person;



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(e) that the person may withdraw consent to the retention of the DNA sample and related DNA information at any time after the DNA sample is taken;

(f) that the person is under no obligation to consent.

Notes




144 Biological relative of missing person may volunteer DNA sample

(1) A person who is a biological relative of a missing person may volunteer to give a DNA sample for a purpose specified by that person in relation to the missing person.

(2) A DNA sample may be taken from a person under this section only if the person has given informed consent.

Notes

1 Section 196 restricts the use of any DNA information derived from a DNA sample taken in accordance with this Part.

2 Section 222 provides for the destruction of DNA samples taken in accordance with this Part and related DNA information.


145 Informed consent to giving DNA sample (volunteer who is a biological relative of missing person)

For the purposes of section 144, a person gives informed consent if the person consents after a police officer informs the person of the following matters—



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(a) that the person must specify the purpose for which the person's DNA information may be used;

(b) that the person's DNA profile will be placed only on the volunteers (limited purposes) index of a DNA database system with identifying information and may be compared with DNA profiles on any index, if that comparison is within the purpose specified by the person;

(c) that the DNA sample and related DNA information will be retained indefinitely unless—

(i) they are no longer required for the purpose specified; or

(ii) the person withdraws consent to retention of the DNA sample and related DNA information—

in which case they will be destroyed;

(d) that the person may withdraw consent to the retention of the DNA sample and related DNA information, at any time after the DNA sample is taken;


Notes


2 Volunteers (limited purposes) index is defined in section 3.





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146 Victoria Police and VIFM personnel may volunteer DNA samples


Institute means the Victorian Institute of Forensic Medicine established under the Victorian Institute of Forensic Medicine Act 1985;

relevant agency means—

(a) Victoria Police; or

(b) the Institute.

(2) Any of the following persons may volunteer to give to a relevant agency a DNA sample—

(a) a member of Victoria Police personnel;

(b) the Director of the Institute or an employee of the Institute (whether employed under the Victorian Institute of Forensic Medicine Act 1985 or the Public Administration Act 2004);

(c) a visitor to—

(i) any premises at which the Victoria Police Forensic Services Department performs any of its functions; or

(ii) any premises at which the Institute performs any of its functions.

(3) A DNA sample may be given under this section only if the relevant agency has provided to the person volunteering to give the DNA sample—

(a) a written statement that the DNA sample is to be provided for the purpose of comparing a DNA profile obtained from the sample against any other DNA profile held by the relevant agency to eliminate the person as a possible source of DNA in—

(i) the investigation of a crime; or



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(ii) the investigation of a reportable death within the meaning of the Coroners Act 2008; or

(iii) in the case of the Institute, testing conducted by the Institute in the performance of its objects and functions; and

(b) a written statement of the requirements of section 224.

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Part 5.6—Obtaining DNA Sample From Child or Incapable Person Who Does Not Volunteer and Is Not a Suspect


114

PART 5.6—OBTAINING DNA SAMPLE FROM CHILD OR INCAPABLE PERSON WHO DOES NOT VOLUNTEER AND

IS NOT A SUSPECT

147 Definition In this Part—


148 Part does not apply to suspects This Part does not apply to a child or incapable person who is a suspect in relation to an indictable offence.

Notes



149 Application for order A police officer may apply to the court for an order under section 150 authorising the taking of a DNA sample from a child or an incapable person for the purpose of assisting in the investigation of an indictable offence specified in the application if—

(a) consent under Part 5.5 is not given or is withdrawn; or



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(b) a parent, guardian, spouse or domestic partner (as the case requires) is unavailable or cannot be located or is an incapable person.

Notes



150 Determination of application (1) On an application under section 149, the court

may order that a police officer may take a DNA sample from a child or an incapable person for the purpose of assisting in the investigation of the indictable offence specified in the application.

(2) The court must not make an order under subsection (1) unless the court is satisfied that—

(a) either—

(i) consent under Part 5.5 has been requested but has not been given or has been withdrawn and there are reasonable grounds to believe that a parent or guardian of the child or a parent, guardian, spouse or domestic partner of the incapable person (as the case requires) is a suspect in relation to the offence specified in the application; or

(ii) a parent or guardian of the child or a parent, guardian, spouse or domestic partner of the incapable person (as the case requires) is unavailable or cannot be located or is an incapable person; and



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(b) in all the circumstances and having regard to the seriousness of the indictable offence specified in the application, the making of the order is justified.

(3) In considering whether or not to make an order under subsection (1), the court must take into account—

(a) the matters referred to in section 319(2)(a), (b), (c) and (d); and

(b) whether the DNA sample has probative value to the investigation of the indictable offence specified in the application.

Notes

1 Section 200 restricts the use of a DNA sample and related DNA information obtained in accordance with this Part.

2 Section 225 provides for the destruction of DNA samples obtained in accordance with this Part.

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Part 5.7—Forensic Procedure On or DNA Sample From Deceased Person


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PART 5.7—FORENSIC PROCEDURE ON OR DNA SAMPLE FROM DECEASED PERSON

151 When authority to conduct forensic procedure continues after death of subject

(1) A forensic procedure may be conducted on a deceased person if—

(a) the person, when alive, had given informed consent under this Chapter to the conduct of a forensic procedure and the procedure has not yet been conducted; or

(b) the person, when alive, had been the subject of an order of a court under this Chapter authorising the conduct of a forensic procedure and the procedure has not yet been conducted.

(2) For the purposes of Parts 5.11 and 5.13, a DNA sample obtained under subsection (1) is taken to have been obtained from the person when alive.

152 Senior next of kin may consent to DNA sample being taken from deceased person

A DNA sample from a deceased person may be taken for the purpose of assisting in the investigation of a specified offence if the person's senior next of kin gives informed consent.

Note

Section 197 restricts the use of any DNA information derived from a DNA sample taken in accordance with this Part.

153 Informed consent to taking DNA sample (senior next of kin of deceased person)

For the purposes of section 152, a person who is the senior next of kin of a deceased person gives informed consent if the person consents after a police officer informs the person of the following matters—



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(a) that the DNA sample may be used only for the purpose of investigating an offence specified by the police officer;

(b) the deceased person's DNA profile will be placed on the volunteers (limited purposes) index of a DNA database system with identifying information and may be compared with DNA profiles on any index, if that comparison is within the purpose of investigating the offence specified; and

(c) that the DNA sample and related DNA information will be retained indefinitely unless—

(i) they are no longer required for the purpose of investigating the offence specified; or

(ii) the person withdraws consent to retention of the DNA sample and related DNA information—

in which case they will be destroyed;

(d) that the person may withdraw consent to the retention of the DNA sample and related DNA information at any time after the DNA sample is taken;


Notes







119

154 Application for court order For the purpose of assisting in the investigation of a specified offence, a police officer may apply to the Magistrates' Court for an order under section 156 directing that—

(a) a DNA sample be taken from a deceased person; or

(b) part of a DNA sample previously taken from a deceased person during an investigation under Part 4 of the Coroners Act 2008 be provided to the applicant.

Notes



155 Coroner a party to application A coroner is a party to an application for an order under section 156 if—

(a) the body of the deceased person is under the control of the coroner within the meaning of section 22 of the Coroners Act 2008; or

(b) the application is for an order referred to in section 154(b) and the coroner is in possession of the DNA sample.

156 Court order for DNA sample from deceased person (1) The Magistrates' Court may make an order

directing that—

(a) a DNA sample be taken from a deceased person; or

(b) part of a DNA sample previously taken from a deceased person during an investigation under Part 4 of the Coroners Act 2008 be provided to the applicant.



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(2) The Magistrates' Court must not make an order under subsection (1) unless the court is satisfied that—

(a) there are reasonable grounds to believe that the taking of a DNA sample from the deceased person will assist in the investigation of the offence specified in the application; and

(b) in all the circumstances, the making of the order is justified.

Notes

1 Unless the court otherwise orders, the court must not make an order under this section in the absence of the senior next of kin of the deceased person—see section 319.

2 Section 197 restricts the use of any DNA information derived from a DNA sample obtained in accordance with an order under this section.

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Part 5.8—Interim Order for Forensic Procedure for Crime Scene Material on Suspect


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PART 5.8—INTERIM ORDER FOR FORENSIC PROCEDURE FOR CRIME SCENE MATERIAL ON SUSPECT


audio link and audio visual link have the same meanings as in section 42C of the Evidence (Miscellaneous Provisions) Act 1958;


158 Application for interim order directing forensic procedure

(1) A police officer may apply to the court for an interim order under section 159 directing a suspect to undergo a forensic procedure if the police officer suspects on reasonable grounds that the information or sample sought to be obtained by the forensic procedure is likely to be lost if the procedure is delayed until the final determination of the application.

(2) An application under subsection (1) may be made with or without notice to any other person.

Notes



159 Determination of application for interim order

(1) On an application under section 158, the court may make an interim order directing a suspect to undergo a forensic procedure if the court is satisfied on the balance of probabilities that—



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(a) the information or sample sought to be obtained by the forensic procedure is likely to be lost if the procedure is delayed until the final determination of the application; and

(b) on the evidence (whether sworn or unsworn) before it at that time, there appears to be sufficient evidence to satisfy it of the matters set out in section 125; and

(c) in the case of an application by audio link or audio visual link, the information or sample sought to be obtained by the forensic procedure is likely to be lost if the making of the application is delayed until the time when the application could be made in person.

(2) If the court makes an interim order, it must adjourn the further hearing of the application to enable the forensic procedure to be conducted.

Note

Division 2 of Part 5.11 restricts the use of any DNA information derived from a forensic procedure conducted under an interim order.

160 Application for interim order by audio link or audio visual link

(1) A police officer may make an application under section 158 for an interim order by audio link or audio visual link if the police officer suspects on reasonable grounds that the sample or evidence sought to be obtained by the forensic procedure is likely to be lost if the making of an application for an interim order is delayed until the time when the application could be made in person.

(2) Before making the application, the applicant must prepare an affidavit setting out the grounds on which the order is sought but, if necessary, may make the application before the affidavit is sworn.



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(3) If transmission by electronic communication is available, the applicant must transmit a copy of the affidavit (whether sworn or unsworn) to the magistrate constituting the court that is to hear the application by audio link or audio visual link.

(4) Not later than the day following the making of the application, the applicant must send the affidavit duly sworn to the magistrate who constituted the court that heard the application.

(5) Subsection (4) applies whether or not an interim order is made.

161 Hearing of application by audio link or audio visual link

(1) If a person who is the subject of an application under section 158 that is made by audio link or audio visual link is present with the applicant, the court, if practicable, must allow the person to address the court on all of the matters referred to in section 159(1).

(2) The court, if practicable, must also allow the following persons, if present with the applicant, to address the court—

(a) if the person who is the subject of the application is a child, a parent or guardian of the child; or

(b) if the person who is the subject of the application is an incapable person—


(ii) a parent or guardian of the incapable person.

(3) A failure of the court to comply with this section does not invalidate any order made by it.



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162 Making of order on application by audio link or audio visual link

(1) If the court makes an interim order on an application made by audio link or audio visual link, the court must inform the applicant of—

(a) the terms of the order; and

(b) the date and time when the order was made; and

(c) the date on which and the venue of the court at which the further hearing of the application will take place.

(2) If transmission by electronic communication is available, the court must transmit a copy of its order to the applicant.

(3) A failure of the court to comply with subsection (1) or (2) does not invalidate any order made by it.

163 Applicant's duties on making of interim order by audio link or audio visual link

(1) If the court makes an interim order on an application made by audio link or audio visual link, the applicant must—

(a) if a copy of the order has been transmitted by electronic communication, give a copy of the order to the person ordered to undergo the forensic procedure; and

(b) if a copy of the order has not been transmitted by electronic communication—

(i) complete a form of order in the terms indicated by the court under section 162(1); and

(ii) write on the form of order the name of the magistrate who constituted the court that made the order and the date and time when the order was made; and



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(iii) give a copy of that form of order to the person ordered to undergo the forensic procedure; and

(c) inform the person ordered to undergo the forensic procedure of the terms of the order; and

(d) serve on the person ordered to undergo the forensic procedure, by personal service, written notice—

(i) of the date, time and venue of the court at which the further hearing of the application will take place; and

(ii) that the person is required to be present at that further hearing.

(2) Not later than the day following the making of the interim order, the applicant must send the form of order, if any, completed by the applicant to the magistrate who constituted the court that made the order.

(3) A police officer who informs a person of the matters in subsection (1)(c) must record the giving of the information and the person's responses, if any—


(b) if recording under paragraph (a) is not practicable, in writing signed by the person or, if the person refuses to sign and an independent person witnessed the matters recorded, the independent person.

Note

Part 7.3 provides for the service of copies of recordings and transcripts of recordings. Section 329 requires personal service of this recording.



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164 Further hearing after interim order (1) After the making of an interim order, Part 5.2

applies to the further hearing of the application for an order directing a person to undergo a forensic procedure.

(2) The further hearing must not be conducted by audio link or audio visual link.

(3) The person who is the subject of the application must attend the further hearing.

(4) On the further hearing of the application—

(a) if the court is satisfied of the matters set out in section 125, it must confirm the interim order; or

(b) if the court is not so satisfied, it must order the destruction of any sample taken and any information obtained as a result of the forensic procedure.

165 Use of DNA sample obtained on confirmed interim order

If an interim order is confirmed under section 164, a DNA sample obtained in accordance with that order is taken, on and from the confirmation, to have been obtained in accordance with Part 5.2.

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Part 5.9—Interstate Forensic Orders


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PART 5.9—INTERSTATE FORENSIC ORDERS

166 Registration of orders (1) The Minister may enter into arrangements with

the responsible Ministers of the participating jurisdictions for the establishment and maintenance, in one or more of those jurisdictions or in Victoria, of a register of—

(a) orders for the carrying out of forensic procedures made under this Chapter; and

(b) interstate forensic orders.

(2) An order or an interstate forensic order is registered when a copy of the order certified by the person who made it is registered in accordance with—

(a) if the register is kept in Victoria, section 167; or

(b) if the register is kept in a participating jurisdiction, the corresponding law of that jurisdiction.

(3) An appropriate authority may apply for—

(a) registration of an order; or

(b) cancellation of registration of an order.

167 Registration of interstate forensic orders in Victoria

(1) An appropriate authority may apply for the registration in Victoria of an interstate forensic order.

(2) An application under subsection (1) must be—

(a) in writing; and

(b) directed to the Chief Commissioner of Police; and

Part 5.9—Interstate Forensic Orders


128

(c) accompanied by a copy of the interstate forensic order certified by the person who made it.

(3) On an application under subsection (1), the Chief Commissioner of Police must register the interstate forensic order if satisfied that the order was made in accordance with the relevant corresponding law.

168 Cancellation of registration If an interstate forensic order is registered under section 167(3), the appropriate authority that applied for the registration may apply in writing to the Chief Commissioner of Police for the cancellation of that registration.

169 Execution of registered interstate forensic order (1) A police officer may execute a registered

interstate forensic order in Victoria.

(2) A registered interstate forensic order must be executed in accordance with Part 5.10.

(3) Neither this Chapter, nor any arrangement referred to in section 166, compels any person to execute a registered interstate forensic order.

170 Taking, retention and use of DNA samples authorised by corresponding laws

Subject to sections 167, 169 and this section, nothing in this Chapter affects the taking, retention or use of a DNA sample or DNA information if the taking, retention or use of the DNA sample is authorised by or under a corresponding law of a participating jurisdiction.

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Part 5.10—Conduct of Forensic Procedure


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PART 5.10—CONDUCT OF FORENSIC PROCEDURE

Division 1—Attendance of offender

171 Notice to attend for taking of DNA sample from offender

(1) In this section, offender has the same meaning as in Part 5.4.

(2) A senior police officer may serve on an offender a notice in accordance with subsections (3) and (4) if the senior police officer is satisfied that—

(a) a court has made an order under section 139 directing that a DNA sample be taken from the offender; and

(b) the order has not been executed; and

(c) the offender is not a detained person.

(3) A notice must direct the offender to attend at a police station specified in the notice within 28 days after service of the notice to give a DNA sample and must state—

(a) the date on which the order under section 139 was made and the court which made the order; and

(b) that the offender has not given a DNA sample in accordance with the order; and

(c) that if the offender fails to comply with the notice an application for a warrant to arrest the offender may be made without further notice to the offender; and

(d) that the offender may wish to seek legal advice as to the effect of the notice; and

(e) the name, rank and telephone number of the senior police officer serving the notice.



130

(4) A copy of the order under section 138 must be attached to and served with the notice.

(5) A notice must be served by personal service.

(6) If an offender does not comply with a notice served under this section, a police officer may apply for a warrant under Division 1 of Part 6.2.

Division 2—Detention of person for purpose of conducting forensic procedure

172 Detention for conduct of certain forensic procedures A police officer may—

(a) detain a person on whom a forensic procedure is to be conducted in accordance with the order of a court (including an interstate forensic order registered under Part 5.9) or the authorisation of a senior police officer for as long as is reasonably necessary to permit the conduct of the forensic procedure; and

(b) take the person to a place with appropriate facilities for the conduct of the forensic procedure.

Note

This section does not authorise the detention of volunteers.

Division 3—Who may conduct forensic procedure

173 Who may conduct forensic procedure

(1) A non-intimate forensic procedure (other than a buccal swab taken by the subject) may be conducted only by—

(a) a person, or a person belonging to a class of persons, authorised under section 176 to conduct that procedure; or

(b) a medical practitioner, nurse or midwife.



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(2) An intimate forensic procedure (other than the taking of a dental impression) may be conducted only by a medical practitioner, nurse or midwife.

(3) A forensic procedure consisting of the taking of a dental impression may be conducted only by a dentist.

174 Gender restrictions for certain forensic procedures (1) This section applies to the following forensic

procedures—

(a) a non-intimate forensic procedure that requires the subject to remove clothing (other than an overcoat, coat, jacket, gloves, socks, shoes or hat);

(b) an intimate forensic procedure (other than the taking of a dental impression).

(2) If practicable, a forensic procedure referred to in subsection (1) must be conducted by—

(a) subject to paragraph (b), a person of the same sex as the subject; or

(b) if the subject identifies as a member of a particular gender, a person of that gender.

175 Subject may choose who conducts certain intimate forensic procedures


relevant intimate forensic procedure means an intimate forensic procedure other than the taking of—

(a) a blood sample; or



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(b) a saliva sample; or

(c) a buccal swab. Note

The definition of intimate forensic procedure in section 3 includes the taking of a buccal swab by a person other than the subject without the consent of the subject.

(2) A person on whom a relevant intimate forensic procedure is to be conducted may request that the procedure be conducted by or in the presence of—

(a) in the case of a dental impression, a dentist chosen by the person; or

(b) in any other case, a medical practitioner, nurse or midwife chosen by the person.

(3) If a person makes a request under subsection (2), the relevant intimate forensic procedure is to be conducted by or in the presence of the chosen person, if practicable, and if the chosen person consents to do so.

(4) If the relevant intimate forensic procedure is to be conducted by the person chosen under subsection (2), a medical practitioner, nurse, midwife or dentist (as the case requires) nominated by the police must be present during the procedure. Note

Section 188 provides that a medical practitioner, nurse, midwife or dentist is not compelled to participate in a forensic procedure.



133

176 Chief Commissioner of Police may authorise person to conduct non-intimate forensic procedures

(1) The Chief Commissioner of Police may authorise a person—

(a) to conduct non-intimate forensic procedures either generally or in respect of certain types of procedures; or

(b) to supervise subjects in taking their own buccal swabs in accordance with this Part—

if the Chief Commissioner is satisfied that the person—

(c) is appropriately qualified; or

(d) has successfully completed appropriate training.

(2) An authorisation under subsection (1) must be in writing.

Division 4—Conduct of a forensic procedure

177 How forensic procedures must be conducted A forensic procedure must be conducted—

(a) if conducted by a medical practitioner, nurse, midwife or dentist, in a manner consistent with the appropriate medical or dental standards; and

(b) in circumstances affording reasonable privacy to the subject.

178 How samples must be taken (1) If a forensic procedure consists of the taking of a

sample, the sample must be taken by the least intrusive and least painful method practicable in the circumstances.



134

(2) If a forensic procedure consists of the taking of a buccal swab, the subject must be given the opportunity to take the buccal swab.

(3) If a forensic procedure consists of the taking of a blood sample, not more than 10 millilitres of blood may be taken for the sample.

(4) If a forensic procedure consists of the taking of a hair sample—

(a) no more hair may be taken than the person taking the sample reasonably believes is necessary for analysis or examination; and

(b) the root of the hair must not be taken unless the person taking the sample reasonably believes it is necessary to do so for analysis or examination.

179 Caution before forensic procedure on suspect (1) Immediately before a forensic procedure (other

than a buccal swab taken by the subject) is conducted on a suspect, a police officer must inform the suspect that the suspect does not have to answer any questions asked by the person conducting the procedure but that anything that the suspect does say may be given in evidence.

(2) A police officer who informs a suspect of the matters in subsection (1) must record the giving of the information and the suspect's responses, if any—




135

(b) if recording under paragraph (a) is not practicable, in writing signed by the suspect or, if the suspect refuses to sign and an independent person witnessed the matters recorded, the independent person.

Note


180 Information to be given to suspect where senior police officer authorised forensic procedure

(1) This section applies if a senior police officer has given an authorisation under section 121 in respect of a suspect.

(2) Before the forensic procedure is conducted, a police officer must inform the suspect of the following—

(a) that an authorisation under section 121 has been given by a senior police officer;

(b) the date and time when the authorisation was given;

(c) the reasons for giving the authorisation;

(d) the non-intimate forensic procedure that is authorised;

(e) if the authorisation is to take a sample of hair, that the suspect may elect to take a buccal swab instead of providing the sample of hair, if the police officer considers it appropriate to do so.

(3) A police officer who informs a suspect of the matters in subsection (2) must record the giving of the information and the suspect's responses, if any—




136

(b) if recording under paragraph (a) is not practicable, in writing signed by the suspect or, if the suspect refuses to sign and an independent person witnessed the matters recorded, the independent person.

Note


(4) A failure of the senior police officer or a police officer to comply with this section does not invalidate an authorisation given by the senior police officer.

181 Warning that reasonable force may be used in certain circumstances

Immediately before a forensic procedure is conducted in accordance with the order of a court or the authorisation of a senior police officer, a police officer must inform the subject that reasonable force may be used to assist in the conduct of the forensic procedure.

182 Certain forensic procedures must be recorded or witnessed

(1) The conduct of an intimate forensic procedure (other than the taking of a blood sample) in accordance with the order of a court must be—

(a) recorded by audiovisual recording if—

(i) it is practicable to do so; and

(ii) the subject consents; or

(b) witnessed by a person referred to in subsection (2).



137

(2) The following persons may witness an intimate forensic procedure under subsection (1)(b)—

(a) in the case of the taking of a dental impression—

(i) an independent dentist; or

(ii) the dentist chosen by the subject under section 175;

(b) in any other case—

(i) an independent medical practitioner, nurse or midwife; or

(ii) the medical practitioner, nurse or midwife chosen by the subject under section 175.

(3) The conduct of a non-intimate forensic procedure (other than a buccal swab taken by the subject) in accordance with the order of a court or the authorisation of a senior police officer must be—

(a) recorded by audiovisual recording if it is practicable to do so; or

(b) witnessed by an independent person. Notes

1 See section 186 as to signature requirements on order.

2 Part 7.3 sets out the requirements for service of copies of recordings and transcripts of recordings.

183 Persons who must be present when forensic procedure conducted on child or incapable person

(1) A person must not conduct a forensic procedure on a child or an incapable person in accordance with this Chapter unless one of the following persons is present—





138







(2) A person present at a forensic procedure in accordance with subsection (1) may be excluded from the place where the forensic procedure is being conducted if the person unreasonably interferes with or obstructs the conduct of the forensic procedure.

184 Police officer may attend forensic procedure (1) Subject to subsection (2), a police officer may be

present at the conduct of a forensic procedure if the police officer has a valid reason for doing so. Example

Ensuring the continuity of evidence throughout a forensic procedure is a valid reason for a police officer to be present at the conduct of the forensic procedure.



139

(2) If practicable, a police officer present under subsection (1)—

(a) subject to subsection (3), must be—

(i) of the same sex as the subject; or

(ii) if the subject identifies as a member of a particular gender, of that gender; and

(b) must not be involved in investigating the offence for which the forensic procedure is required.

(3) Subsection (2)(a) does not apply if the forensic procedure consists only of the subject taking a buccal swab.

185 When police officer may use reasonable force (1) A police officer, with any assistance that the

police officer considers necessary, may use reasonable force to conduct a forensic procedure, or to assist a person referred to in section 173 to do so, if the forensic procedure has been ordered by a court or authorised by a senior police officer under this Chapter.

(2) If practicable, a police officer acting in accordance with subsection (1) and any person assisting the police officer—

(a) must be—

(i) of the same sex as the subject; or

(ii) if the subject identifies as a member of a particular gender, of that gender; and

(b) must not be involved in investigating the offence for which the forensic procedure is required.

Note

This section does not authorise the use of force on volunteers.



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186 Order to be signed if forensic procedure recorded or witnessed

(1) If a forensic procedure is recorded in accordance with section 182, the person who made the recording must write on the authorisation, order or copy of the order (as the case requires) the name of the person and sign the authorisation, order or copy of the order.

(2) If a forensic procedure is witnessed in accordance with section 182, the witness must write on the authorisation, order or copy of the order (as the case requires) the name of the witness and sign the authorisation, order or copy of the order.

(3) A police officer must give a copy of authorisation, order or copy order so signed to the person on whom the forensic procedure was conducted.


187 Immunity of medical practitioners, nurses, midwives, dentists and other persons


forensic practitioner means—

(a) a medical practitioner; or

(b) a nurse; or

(c) a midwife; or

(d) a dentist; or

(e) a person authorised under section 176; or

(f) a person belonging to a class of persons authorised under section 176.

(2) No action lies against a forensic practitioner in respect of anything properly and necessarily done by the forensic practitioner in the course of



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conducting any forensic procedure that the forensic practitioner believes on reasonable grounds was authorised under this Chapter.

(3) No action lies against a person in respect of anything properly and necessarily done by the person in the course of assisting a forensic practitioner in the conduct of a forensic procedure that the person believes on reasonable grounds was authorised under this Chapter.

188 Medical practitioners etc. not compelled to participate in forensic procedures

Nothing in this Chapter compels a medical practitioner, nurse, midwife or dentist to conduct a forensic procedure or to be present when a forensic procedure is conducted.

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Part 5.11—Use and Disclosure of DNA Samples and DNA Information


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PART 5.11—USE AND DISCLOSURE OF DNA SAMPLES AND DNA INFORMATION


189 Meaning of use In this Part (other than Division 4), use includes inclusion on a DNA database system with identifying information.

190 Purposes for which DNA information may be used or disclosed

(1) Subject to any limitations in this Part, a person may use or disclose DNA information, whether or not it is on a DNA database system, for one or more of the following purposes—

(a) comparison permitted under section 188 or under a corresponding law of a participating jurisdiction in the course of a criminal investigation if the person is—

(i) a police officer; or

(ii) any other person authorised in writing by the Chief Commissioner of Police;

(b) the investigation of an offence or offences generally;

(c) a decision whether to commence a proceeding for an offence;

(d) a proceeding for an offence;

(e) the identification of a missing or deceased person or an investigation into the circumstances surrounding the disappearance or death of a missing or deceased person (including comparison on a DNA database system for this purpose);

(f) a coronial investigation or inquest;



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(g) a civil proceeding (including a disciplinary proceeding) that relates to the way in which a forensic procedure was conducted;

(h) an investigation by—

(i) the Commissioner for Privacy and Data Protection appointed under section 96 of the Privacy and Data Protection Act 2014; or

(ii) the Health Services Commissioner within the meaning of the Health Records Act 2001 for the purposes of that Act; or

(iii) the Ombudsman appointed under the Ombudsman Act 1973; or

(iv) the IBAC; or

(v) an authority of a participating jurisdiction, but only if the authority would be entitled to the information if it were held on the DNA database system of the participating jurisdiction;

(i) use in accordance with an arrangement entered into under section 207;

(j) use in accordance with the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth or the Extradition Act 1988 of the Commonwealth;

(k) making the DNA information available to the person to whom the information relates;

(l) a purpose for which the person to whom the DNA information relates consents in writing;

(m) disseminating the information if it is already publicly available;

(n) medical treatment of the person to whom the DNA information relates;



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(o) medical treatment of a person if necessary to prevent or lessen a serious threat to that person's life or health;

(p) preventing or lessening a serious threat to public health;

(q) administering a DNA database system;

(r) use in accordance with any other provision of this Chapter.

(2) This section does not apply to information that cannot be used to discover the identity of any person.

Division 2—Use of DNA profile—unlimited purposes

191 DNA profiles from suspects and offenders (1) A DNA profile that is derived from a DNA

sample taken under any of the following Parts of Chapter 5 and that is not required to be destroyed under Part 5.13 may be used for unlimited purposes—

(a) Part 5.2 (Forensic Procedure on Suspect);

(b) subject to section 204, Part 5.4 (Obtaining DNA Sample from Offender).

(2) A DNA profile that is derived from a DNA sample taken from an adult suspect under Part 5.2 and that is not required to be destroyed under Part 5.13 may be included—

(a) on the suspects index of a DNA database system if—

(i) the subject was found not guilty of the relevant offence because of mental impairment; or

(ii) on a special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 the subject was



145

found to have committed the relevant offence; or

(b) on the serious offenders index of a DNA database system in any other case.

(3) Subject to section 204, a DNA profile that is derived from a DNA sample obtained in accordance with an order under section 138 (DNA sample from offender) and that is not required to be destroyed under Part 5.13 may be included—

(a) on the suspects index of a DNA database system if—

(i) the subject was found not guilty of the relevant offence because of mental impairment; or

(ii) on a special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 the subject was found to have committed the relevant offence; or

(b) on the serious offenders index of a DNA database system in any other case.

192 Confirmed interim order—DNA profile may be included on suspects index with identifying information

If an interim order is confirmed under section 164, a DNA profile derived from a DNA sample obtained in accordance with that order may be included on the suspects index of a DNA database system.

Note

Suspects index is defined in section 3.



146

193 Deceased person—DNA sample obtained in accordance with court order

A DNA profile that is derived from a DNA sample obtained in accordance with an order under section 156 and that is not required to be destroyed under Part 5.13—

(a) may be used for unlimited purposes; and

(b) may be included—

(i) only on the volunteers (unlimited purposes) index of a DNA database system if the identity of the deceased person is known; or

(ii) only on the unknown deceased persons index of a DNA database system if the identity of the deceased person is unknown.

194 Statistical information Information (excluding identifying information) may be retained and included on the statistical index of a DNA database system if it is obtained from analysis of DNA samples taken in accordance with this Chapter.

Note

Statistical index is defined in section 3.

195 Crime scene material A DNA profile obtained from analysis of crime scene material may be used for unlimited purposes.

Division 3—Use of DNA profile—limited purposes

196 Biological relative of a missing person

A DNA profile that is derived from a DNA sample obtained in accordance with section 144 from a volunteer who is a biological relative of a



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missing person and that is not required to be destroyed under Part 5.13—

(a) may be used for the purposes specified by the volunteer under section 145(a) at the time that informed consent was given; and

(b) may be included only on the volunteers (limited purposes) index of a DNA database system.

Note

Volunteers (limited purposes) index is defined in section 3.

197 Deceased person—DNA sample if senior next of kin consents

A DNA profile that is derived from a DNA sample obtained in accordance with section 152 and that is not required to be destroyed under Part 5.13—

(a) may be used for the purpose of investigating the offence specified under section 153(a) at the time that informed consent was given; and

(b) may be included only on the volunteers (unlimited purposes) index of a DNA database system.

Note

Volunteers (unlimited purposes) index is defined in section 3.

Division 4—Use of DNA profile—limited purposes—not to be included on a DNA database system

198 Covert DNA sample—use only for investigation of specified offence

DNA information derived from a covert DNA sample—

(a) must not be included on a DNA database system; and



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(b) may be used only for the purpose of investigating the indictable offence specified in the covert DNA sample authorisation.

Note

Section 132 provides that if a DNA sample is obtained in accordance with a covert DNA sample authorisation from a person who is subsequently charged with an indictable offence or a related offence, that sample may be retained, used and disseminated as if the sample had been obtained under Part 5.2.

199 Volunteers—use only for investigation of specified offence

DNA information derived from a DNA sample obtained from a volunteer in accordance with section 141—


(b) may be used only for the purpose of assisting in the investigation and prosecution of the indictable offence specified by a police officer under section 143(a).

200 DNA sample from child or incapable person not a volunteer or suspect—use only for specified purpose

DNA information derived from a DNA sample obtained from a child or incapable person in accordance with Part 5.6—


(b) may be used only for the purpose of assisting in the investigation of the indictable offence specified in the application for an order under section 150.



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201 Storage of Victoria Police and VIFM personnel DNA information

DNA information derived from a DNA sample given under section 146 must be stored on a database that—

(a) is not a DNA database system; and

(b) is not connected to any other database on which matching of DNA profiles occurs.

Notes

1 DNA database system is defined in section 3.

2 A DNA sample given under section 146 must not be entered in the National Criminal Investigation DNA Database (NCIDD).

202 DNA samples from Victoria Police and VIFM personnel—use only for elimination

A DNA sample given under section 146 may be used only for the purpose referred to in section 146(3)(a).

203 DNA samples and DNA information from Victoria Police and VIFM personnel—release only with consent

A DNA sample given under section 146 and any related DNA information may not be released to any person outside the relevant agency within the meaning of section 146 unless the person who gave the sample consents to the release.

Division 5—Prohibitions on use of DNA sample during appeal period or taken under interim order

204 Prohibition on use of DNA sample or DNA information from offender during appeal period

A DNA sample obtained in accordance with an order under section 138, or any DNA information derived from it, must not be used, analysed, copied or disclosed (whether by inclusion on the



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serious offenders index or the suspects index of a DNA database system or otherwise)—

(a) if—

(i) the appeal period has not yet ended; and

(ii) the subject has not been found guilty, or not guilty because of mental impairment, of any other relevant offence or at a special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 has not been found to have committed any other relevant offence; or

(b) if—

(i) the subject seeks leave to appeal after the end of the period permitted by or under any Act for commencing an appeal; and

(ii) the appeal has not yet been determined, abandoned or struck out; and

(iii) the subject has not been found guilty, or not guilty because of mental impairment, of any other relevant offence or at a special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 has not been found to have committed any other relevant offence; or

(c) if on appeal—

(i) a conviction for the relevant offence is set aside; or

(ii) a verdict of not guilty because of mental impairment for the relevant offence is set aside; or



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(iii) a finding under section 17(1)(c) or 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that the subject committed the relevant offence is allowed.

Notes

1 Serious offenders index and suspects index are defined in section 3.

2 Section 221 provides that the Chief Commissioner of Police must destroy a DNA sample taken in accordance with an order under section 138 within 28 days after—

(a) an appeal against conviction is allowed; or

(b) an appeal against a verdict of not guilty because of mental impairment is allowed; or

(c) an appeal against a finding under section 17(1)(c) or 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 is allowed; or

(d) a retrial is ordered.

205 DNA profile must be removed from DNA database system if leave to appeal granted out of time

(1) A DNA profile and identifying information that has been included on a DNA database system in accordance with section 191(2) must be removed immediately from that database on the granting to the subject of leave to appeal against a conviction for a relevant offence after the end of the period permitted by or under any Act for commencing an appeal.

(2) This section does not apply if—

(a) the subject has been found guilty, or not guilty because of mental impairment, of another offence to which an order made under section 138 applies or at a special hearing under the Crimes (Mental Impairment and Unfitness to be Tried)



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Act 1997 has been found to have committed another offence to which an order made under section 138 applies; or

(b) any other proceeding for a relevant offence has been commenced but not determined.

Note


206 Stay on use of material taken after interim order Material obtained from a person in accordance with an interim order under Part 5.8 must not be used, analysed, copied or disclosed before the final determination of the application for an order directing the person to undergo a forensic procedure.

Division 6—Interstate transmission of DNA information

207 Arrangements for interstate transmission of information on DNA database system

(1) The Minister may enter into an arrangement with the responsible Minister for a participating jurisdiction in respect of the transmission, inclusion, use and removal of information on DNA database systems for the purposes of—

(a) the investigation of, or the conduct of proceedings for, an offence against the law of Victoria or the law of the participating jurisdiction; or

(b) the identification of missing or deceased persons.

(2) The Minister may enter into an arrangement with CrimTrac in respect of the provision of information to and from CrimTrac for the purposes of—



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(a) the investigation of, or the conduct of proceedings for, an offence against the law of Victoria or the law of a participating jurisdiction; or

(b) the identification of missing or deceased persons.

(3) An arrangement entered into under this section must not authorise the comparison of information so as to match DNA profiles in a way that would contravene section 208.

Notes

1 Information that is transmitted under this section must not be recorded or maintained in any database of information that may be used to discover the identity of a person or to obtain information about an identifiable person at any time after the time for destruction of the DNA sample that is required by this Act or a corresponding law of a participating jurisdiction.

2 A person who has access to information from a DNA database system must not disclose the information other than in limited, specified circumstances. See section 190.

Division 7—Matching of information on DNA database system

208 How information on a DNA database system may be matched

(1) A matching of a DNA profile on an index of the DNA database system specified at the top of a column of the following Table with a DNA profile on an index of the system specified in column 1 of a row of the Table—

(a) is not permitted by this Part if "no" is shown at the intersection of the relevant row and column, and



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(b) is permitted by this Part if "yes" is shown at the intersection of the relevant row and column, and

(c) is permitted by this Part in connection with the volunteers (limited purposes) index if "only if within purpose" is shown at the intersection of the relevant row and column, but only if the matching is for a purpose for which the relevant DNA profile was placed on that index.

Notes


2 Paragraph (c) applies only in relation to volunteers' DNA profiles that were placed on the Victorian DNA database system before the commencement of this section. Section 199 prohibits the inclusion on a DNA database system of identifying information from volunteers from whom DNA samples have been taken under Part 5.5, other than biological relatives of missing persons (see section 196).

TABLE Profile to be matched

Is matching permitted?

Column 1 Column 2 Crime Scene

Column 3 Suspects

Column 4 Volunteers (limited purposes)

Column 5 Volunteers (unlimited purposes)

Column 6 Serious offenders

Column 7 Missing persons

Column 8 Unknown deceased persons

1. Crime scene yes yes only if within purpose

yes yes yes yes

2. Suspects yes yes only if within purpose

yes yes yes yes

3. Volunteers (limited purposes)

only if within purpose







4. Volunteers (unlimited purposes)

yes yes only if within purpose

yes yes yes yes



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Profile to be matched

Is matching permitted?

5. Serious offenders


yes yes yes yes

6. Missing persons


yes yes yes yes

7. Unknown deceased persons


yes yes yes yes

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Part 5.12—Provision of Forensic Reports and Material for Analysis


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PART 5.12—PROVISION OF FORENSIC REPORTS AND MATERIAL FOR ANALYSIS


match means a finding that a DNA profile cannot be excluded as being derived from the same person as another DNA profile to which it was compared;

statistical weighting means the statistical determination of the extent to which the DNA profiles match.

210 When forensic report is to be provided to suspect (1) If a DNA sample is taken or collected from a

suspect in relation to the investigation of an offence and material from the DNA sample is analysed, the Chief Commissioner of Police must serve a copy of the forensic report on the results of the analysis, as soon as practicable after the analysis is conducted and within 7 days after the forensic report is received by the prosecution, on—

(a) the suspect or the legal practitioner representing the suspect; and

(b) if the suspect is a child, a parent or guardian of the child; and

(c) if the suspect is an incapable person—



(2) The Chief Commissioner of Police need not comply with subsection (1)(b) or (c) if it is impracticable to do so.



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211 Content of forensic report A forensic report must specify—

(a) the identity of the person on whom the forensic procedure was conducted; and

(b) the date on which the forensic procedure was conducted; and

(c) the type of DNA sample obtained; and

(d) if a DNA profile was derived from that sample—

(i) whether a relevant match has been made in relation to the offence under investigation; and

(ii) if a relevant match has been made, its statistical weighting; and

(iii) information explaining the DNA profiling process, how interpretations are made and the meaning of the numerical results; and

(e) that the person on whom the forensic procedure was conducted may request at any time a further forensic report under section 212; and

(f) the details that would be included in a further forensic report; and

(g) the prescribed information, if any.

212 Suspect may request further forensic report

(1) A suspect who has received a forensic report under section 210 may request in writing that the Chief Commissioner of Police provide a further forensic report stating whether further matches have been made using the suspect's DNA profile included on an index of the database and, if so, the statistical weighting of those matches.



158

(2) The Chief Commissioner of Police must comply with a request under subsection (1) as soon as practicable after receiving the request.

(3) A further forensic report—

(a) must specify the matters described in section 211(d); and

(b) need not include information that was included in a forensic report previously supplied to the person making the request.

213 Suspect may request part of certain material for analysis

(1) This section applies to—

(a) crime scene material that is reasonably believed to be from the body of a person who is suspected of having committed an indictable offence; and

(b) material that—

(i) is found on a person who is suspected of having committed an indictable offence; and

(ii) is reasonably believed to be from the body of a victim of the indictable offence where the body has not been found; and

(c) a sample taken from a child conceived allegedly as a result of an offence against a provision of Subdivision (8A), (8B), (8C), (8D), (8E) or (8EAA) of Division 1 of Part I of the Crimes Act 1958 in connection with an investigation of that offence.

(2) A suspect who has provided a DNA sample, or from whom a DNA sample has been collected, in relation to an offence referred to in subsection (1) may request that the Chief Commissioner of



159

Police provide to the person a part of the relevant material referred to in subsection (1) that is sufficient for analysis.

(3) The Chief Commissioner of Police must comply with a request under subsection (2) unless it would leave insufficient material for analysis in the investigation of the offence.

Note

Crime scene material is defined in section 3.

__________________

Part 5.13—Destruction of DNA Samples and DNA Information


160

PART 5.13—DESTRUCTION OF DNA SAMPLES AND DNA INFORMATION



court, in relation to an application for a retention order, means—


(b) if an application is in respect of a DNA sample taken from a person as a child and the person is under the age of 19 years at the time the application is made, the Children's Court; or

(c) the court that has found a person—

(i) guilty of a relevant offence; or

(ii) not guilty because of mental impairment of a relevant offence;

destruction, in relation to a DNA sample, means—

(a) the physical destruction of the DNA sample; and

(b) the removal from any DNA database system (other than the statistical index) on which matching occurs of any DNA profile derived from analysis of the DNA sample; and

(c) the destruction of the DNA profile in any form that can readily be recombined with information that identifies the person from whom the DNA sample was taken or who gave the DNA sample, except a DNA profile held on an electronic system used for



161

forensic analysis by the Victoria Police Forensic Services Department;

offender has the same meaning as in Part 5.4.

215 Chief Commissioner of Police responsible for destruction of DNA samples and DNA information

The Chief Commissioner of Police is responsible for ensuring the destruction under this Part of DNA samples and related DNA information that is held or managed by Victoria Police.

216 Director of VIFM responsible for destruction of VIFM DNA samples and DNA information

The Director of the Institute within the meaning of section 146 is responsible for ensuring the destruction under section 224 of DNA samples given under section 146 and related DNA information that are held or managed by the Institute.

217 When suspect's DNA sample must be destroyed (1) Subject to section 232, a DNA sample taken from

a person as a suspect must be destroyed—

(a) if a proceeding for a relevant offence has not commenced against the person within the period of 12 months after the taking of the DNA sample—within 28 days after the end of that period;

(b) if a court orders under section 164 the destruction of a DNA sample taken in accordance with an interim order which is not confirmed—within 28 days after the court order;



162

(c) if the person has been charged with a relevant offence within the period of 12 months after the taking of the DNA sample but the charge is discontinued, withdrawn or permanently stayed—within 28 days after the discontinuance, withdrawal or stay;

(d) if the person is acquitted or found not guilty of a relevant offence (other than because of mental impairment) or the charge is dismissed—within 28 days after the end of the appeal period;

(e) if the person has been released on an undertaking under section 75 of the Sentencing Act 1991 in relation to a charge for a relevant offence—within 28 days after the dismissal of the charge under section 75(6) of that Act;

(f) if the person is pardoned in the exercise of the royal prerogative of mercy in relation to a relevant offence—within 28 days after the granting of the pardon;

(g) if a DNA sample was taken from a child as a suspect and the child is found guilty, or not guilty because of mental impairment, of a relevant offence or at a special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 has been found to have committed a relevant offence—within 6 months after the end of the appeal period;

(h) if a DNA sample was taken from a child as a suspect and section 218 applies—within the period specified in section 218(2);

(i) if a retention order is made—within 28 days after the date specified in the retention order;



163

(j) if a court refuses to make a retention order—within 28 days after the refusal;

(k) if the person is found guilty, or not guilty because of mental impairment, of a summary offence only—within 28 days after the finding is made.

(2) Subsection (1) does not apply if the person from whom the DNA sample was taken is charged with another relevant offence the outcome of which is not referred to in subsection (1).

Note


218 Destruction of DNA sample taken from a child (1) This section applies if—

(a) a person when a child was the subject of a forensic procedure as a suspect under this Chapter or any corresponding previous enactment; and

(b) the DNA sample obtained from the forensic procedure is not otherwise required to be destroyed under this Part; and

(c) the person is not found guilty of any further indictable offence before attaining the age of 26 years.

(2) Subject to subsection (3) and section 194, a DNA sample referred to in subsection (1) must be destroyed—

(a) within 28 days after the person attains the age of 26 years; or

(b) if a retention order is made—within 28 days after the date, if any, specified in the retention order; or



164

(c) if a court refuses to make a retention order—within 28 days after the refusal.

(3) Subsection (2) does not apply to a DNA sample retained as a result of a finding of guilt of an offence punishable by level 4 imprisonment (15 years maximum) or more (however the penalty is described).

(4) This section applies even if a court has made an order under section 231 that the DNA sample be retained indefinitely.

219 When covert DNA sample must be destroyed Subject to section 132, a covert DNA sample must be destroyed—

(a) within 28 days after—

(i) the refusal of an application for a covert DNA sample authorisation to analyse the covert DNA sample; or

(ii) analysis of the covert DNA sample excludes the person sampled from the offence under investigation or a related offence; or Note


(b) subject to paragraph (c), within 3 months after its collection; or

(c) if an extension is given under section 220—within 28 days after the expiry of the period as extended.

Note

Section 132 provides for the retention and use of a covert DNA sample when the person sampled is subsequently charged.



165

220 Senior police officer may extend period within which covert DNA sample must be destroyed

(1) At any time before destruction of a covert DNA sample is required under section 219, a police officer may apply in writing to a senior police officer for an extension of the period within which a covert DNA sample must be destroyed. Note

Section 3 provides that in this section senior police officer means a police officer of or above the rank of superintendent.

(2) A senior police officer to whom an application is made under subsection (1) may give an extension (not exceeding 3 months) of the period within which a covert DNA sample must be destroyed if satisfied that the covert DNA sample continues to have forensic relevance for the investigation or prosecution of the offence specified in the covert DNA sample authorisation or a related offence. Note


(3) The period within which a covert DNA sample must be destroyed may be extended more than once under subsection (2).

(4) An extension under subsection (2) must be given in writing signed by the senior police officer giving it and must specify—

(a) the date and time when the extension is given; and

(b) the period of the extension; and

(c) the reasons for giving the extension.



166

221 When offender's DNA sample must be destroyed A DNA sample taken from an offender in accordance with an order under section 138(1) and DNA information derived from the DNA sample must be destroyed within 28 days after—

(a) an appeal against conviction of the offence is allowed; or

(b) an appeal against a verdict of not guilty because of mental impairment of the offence is allowed; or

(c) an appeal against a finding under section 17(1)(c) or 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that the offender committed the offence is allowed; or

(d) a retrial of the charge for the offence is ordered.

222 When volunteer's DNA sample must be destroyed (1) A DNA sample taken from a person as a volunteer

in accordance with section 140 (investigation of offence) must be destroyed within 28 days after—

(a) subject to paragraph (b), the DNA sample is no longer required for the purpose of assisting in the investigation and prosecution of the offence specified when the volunteer gave informed consent; or

(b) consent to the retention of the DNA sample and any related DNA information is withdrawn.

(2) A DNA sample taken from a biological relative of a missing person in accordance with section 144 must be destroyed within 28 days after—



167

(a) subject to paragraph (b), the DNA sample is no longer required for the purpose specified when the biological relative gave informed consent; or


223 When deceased person's DNA sample must be destroyed

A DNA sample taken from a deceased person in accordance with section 152 must be destroyed within 28 days after—

(a) subject to paragraph (b), the DNA sample is no longer required for the purpose of investigating and prosecuting the offence specified by the police officer under section 153(a) at the time that informed consent was given under section 152; or


224 When Victoria Police and VIFM personnel DNA samples must be destroyed

A DNA sample given under section 146 must be destroyed if—

(a) in the case of a sample given by the Chief Commissioner of Police, the Chief Commissioner requests the destruction of the sample by notice in writing to the Minister administering the Victoria Police Act 2013; or

(b) in the case of a sample given by any other member of Victoria Police personnel or a visitor to any premises at which the Victoria Police Forensic Services Department



168

performs functions, the member or visitor requests the destruction of the sample by notice in writing to the Chief Commissioner of Police; or

(c) in the case of a sample given by the Director of the Institute, the Director requests the destruction of the sample by notice in writing to the Attorney-General; or

(d) in the case of a sample given by an employee of the Institute or a visitor to any premises at which the Institute performs any of its functions, the employee or visitor requests the destruction of the sample by notice in writing to the Director of the Institute; or

(e) 12 months have elapsed since the person who gave the sample ceased to be a member of Victoria Police personnel, the Director of the Institute or an employee of the Institute, as the case may be.

225 When DNA sample from child or incapable person taken under Part 5.6 must be destroyed

A DNA sample taken from a person in accordance with an order under section 150 must be destroyed within 28 days after the DNA sample is no longer required for the purpose of assisting in the investigation and prosecution of the indictable offence specified in the order.

226 DNA samples and DNA information obtained unlawfully to be destroyed

(1) Subject to subsection (2), the Chief Commissioner of Police must destroy a DNA sample or DNA information that is obtained in contravention of this Act within 28 days after the Chief Commissioner of Police becomes aware that the sample or information was so obtained.



169

(2) Subsection (1) does not require destruction of a DNA sample merely because of noncompliance with a requirement of this Act to give reasons for a decision and to cause a note of the reasons to be entered in the records of the court.

227 DNA sample that may be retained indefinitely Any DNA sample and related DNA information not referred to in this Division may be retained indefinitely.

Note

This includes a DNA sample from a deceased person taken under Part 5.7.

228 Notification of destruction (1) A person who has provided a DNA sample, or has

consented to the taking of a DNA sample, may request the Chief Commissioner of Police to inform the person whether the DNA sample and related DNA information have been destroyed.

(2) At the time a person consents to the taking of a DNA sample, the person may request to be notified of the destruction of the sample within 14 days after its destruction.

(3) If this Part requires the destruction of a DNA sample referred to in a request under subsection (1) or (2), the Chief Commissioner of Police must inform the person who made the request whether—

(a) the DNA sample has been physically destroyed; and

(b) any DNA profile derived from analysis of the DNA sample has been removed from any DNA database on which matching occurs; and



170

(c) the DNA profile in any form that can readily be recombined with information that identifies the person from whom the DNA sample was taken or who gave the DNA sample has been destroyed.

(4) A response under subsection (3) must be made—

(a) in writing; and

(b) within 14 days after—

(i) the Chief Commissioner of Police receives the request under subsection (1); or

(ii) the destruction of the DNA sample in the case of a request under subsection (2).

229 Subsequent forensic procedure not prevented Nothing in this Part prevents the conduct of a subsequent forensic procedure under this Act on a person whose DNA sample is required to be destroyed under this Part.

Division 2—Retention order

230 Application for retention order At any time before destruction of a DNA sample is required under section 217 (other than section 217(1)(k)) or 218, a police officer may apply to the court for an order for the retention of the DNA sample.

Notes





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231 Determination of application (1) On an application under section 230 (other than an

application referred to in subsection (2)), the court may order that the DNA sample referred to in section 217 or 218 be retained until a date specified in the order.

(2) On an application under section 230 in respect of a DNA sample referred to in section 217(1)(g), the court may order that the DNA sample be retained indefinitely. Note

Section 218(4) provides that section 218 applies even if a court has made an order under subsection (2).

(3) In determining whether to make an order under subsection (1) or (2), the court—

(a) must take into account the seriousness of the offence and the circumstances surrounding the commission of the relevant offence; and

(b) must not make a retention order unless it is satisfied that—

(i) in all the circumstances, the making of the order is justified; and

(ii) in the case of a DNA sample referred to in section 217(1)(d) or 218, the DNA sample has forensic relevance to the investigation of another indictable offence in relation to which the person is a suspect. Note


(4) Subsection (3)(a) does not limit the matters that the court may take into account in determining an application for a retention order.



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(5) A retention order may be made more than once in relation to the same matter.

232 DNA sample and DNA information not to be destroyed pending determination of application

If an application for a retention order is made, the DNA sample to which the application relates, and any related DNA information, must not be destroyed until the determination of the application.

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PART 5.14—FAILURE TO COMPLY WITH CHAPTER

Division 1—When DNA evidence is or may be inadmissible

233 Inadmissible evidence (1) A DNA sample or DNA information is

inadmissible as evidence as part of the prosecution case in a proceeding against the subject for any offence if—

(a) the DNA sample was taken under Part 5.5 from a volunteer or under Part 5.6 from a person who did not volunteer and was not a suspect; or

(b) the DNA sample or DNA information was required to be destroyed under Part 5.13 but was not destroyed; or

(c) the DNA information is derived from a DNA sample the analysis of which is prohibited by this Act. Notes

1 Divisions 3, 4, 5 and 7 of Part 5.11 restrict the analysis of an offender's DNA sample and use of any DNA information derived from it in certain circumstances.

2 Part 5.3 restricts the analysis of a covert DNA sample.

(2) This section does not apply to an audiovisual recording of a forensic procedure. Note

Section 236 provides for the admissibility of audiovisual recordings of forensic procedures.

234 Admissibility of DNA samples from Victoria Police and VIFM personnel

(1) Evidence of a DNA sample given by a person under section 146 and any related DNA information is inadmissible as evidence against



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the person, unless the person consents to the admission of the evidence, in—

(a) any proceeding, whether civil or criminal; or

(b) a proceeding arising out of, or connected with, an investigation under Division 6 of Part 4, Part 5, Part 7, Part 9 or Part 10 of the Victoria Police Act 2013 in respect of the person; or

(c) a proceeding arising out of, or connected with, a critical incident (within the meaning of section 82 of the Victoria Police Act 2013).

(2) In subsection (1) a proceeding includes a coronial inquest or inquiry.

235 Inadmissible evidence that the court has discretion to admit

(1) Subject to subsection (2), evidence obtained as a result of a forensic procedure is inadmissible as part of the prosecution case in proceedings against the subject for any offence if the requirements of Chapter 5 (other than Parts 5.5 and 5.6) have not been complied with.

(2) A failure to comply with Chapter 5 (other than Parts 5.5 and 5.6) constitutes a contravention of the law for the purposes of the Evidence Act 2008.

(3) In the application of section 138 of the Evidence Act 2008, the probative value of the evidence does not by itself justify the reception of the evidence.

(4) This section does not apply to an audiovisual recording of a forensic procedure.



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236 Admissibility of audiovisual recordings of forensic procedures restricted

(1) This section applies to the recording of a forensic procedure if the requirements referred to in section 235(1) have not been complied with.

(2) Subject to subsection (3), if the conduct of a forensic procedure is recorded by audiovisual recording, the recording is inadmissible as evidence except—

(a) to establish or rebut an allegation that unreasonable force was used to enable the procedure to be conducted; or

(b) to establish or rebut an allegation that the forensic procedure was not conducted in accordance with the requirements of this Chapter; or

(c) to determine the admissibility of an admission or other evidence adverse to the subject where the subject alleges that the evidence was induced or obtained by the use of unreasonable force.

(3) Despite subsection (2), a recording is admissible if the subject does not object to its admission.

237 Evidence admissible in proceedings for relevant offence

If evidence obtained as a result of a forensic procedure would be admissible in proceedings against the subject for an offence, that evidence is admissible in proceedings against the subject for a relevant offence.

Note




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238 Evidence obtained through medical or dental treatment admissible

Evidence obtained as a result of a physical examination conducted in good faith on a person for the purposes of medical or dental treatment is admissible in proceedings against that person for an offence.

Note

Section 170 provides for the use of a DNA sample, and information obtained from a DNA sample, authorised by or under a corresponding law of a participating jurisdiction.

Division 2—Offences

239 Offence to obstruct or hinder the conduct of a forensic procedure

A person must not intentionally obstruct or hinder the conduct of a forensic procedure.


240 Offence to give false or misleading personal details for forensic procedure

A person must not provide personal details that the person knows are false or misleading in a material particular in response to a request for personal details in connection with undergoing a forensic procedure under this Act.


Note

Personal details is defined in section 3.



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241 Offence to request another person to undergo forensic procedure

A person (person A) who is to undergo a forensic procedure must not, directly or indirectly, request another person to undergo that procedure in the place of person A.


242 Offence to undergo forensic procedure in place of another

A person must not knowingly undergo a forensic procedure in the place of another person.


243 Prohibition on use etc. of DNA samples or DNA information not permitted by Part 5.11

A person must not, other than in accordance with Part 5.11—

(a) use, analyse, copy, disclose or place on a DNA database system; or

(b) cause or permit the use, analysis, copying, disclosure or placement on a DNA database system of—

a DNA sample or DNA information that has been obtained under this Act or a DNA profile derived from analysis of crime scene material, knowing that the use, analysis, copying, disclosure or placement is not authorised by Part 5.11 or believing that the use, analysis, copying, disclosure or placement is probably not authorised by Part 5.11.




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244 Prohibition on use etc. of DNA samples that should have been destroyed or DNA information derived from those samples

A person must not—

(a) use, analyse, copy, disclose or place on a DNA database system; or

(b) cause or permit the use, analysis, copying, disclosure or placement on a DNA database system of—

a DNA sample that is required to be destroyed under Part 5.13, or any DNA information derived from the DNA sample (whether or not that DNA information is required to be destroyed), knowing that the DNA sample is required to be destroyed or believing that the DNA sample is probably required to be destroyed.


245 Offences relating to destruction of DNA samples or DNA information

(1) Subject to subsection (2), the Chief Commissioner of Police must not fail to destroy a DNA sample or DNA information that is required by this Act to be destroyed, or cause it to be destroyed, within the relevant period specified in Part 5.13, knowing that the DNA sample or DNA information is required to be destroyed or believing that the DNA sample or DNA information is probably required to be destroyed.


(2) The Director of the Institute within the meaning of section 146 must not fail to destroy a DNA sample or DNA information that is held or managed by the Institute, or cause it to be destroyed, within the



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relevant period specified in Part 5.13, knowing that the DNA sample or DNA information is required to be destroyed or believing that the DNA sample or DNA information is probably required to be destroyed.


Note

Section 244 prohibits the use, dissemination or analysis of a DNA sample or DNA information the destruction of which is required under Part 5.13.

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Part 6.1—Warrants—General


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CHAPTER 6—WARRANTS

PART 6.1—WARRANTS—GENERAL

246 Search warrant rules in Magistrates' Court Act 1989 to apply to search warrants issued under this Act

Except as provided by this Chapter, the rules to be observed with regard to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to search warrants and covert search warrants under this Chapter.

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Part 6.2—Search Warrants


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PART 6.2—SEARCH WARRANTS

Division 1—Issue of search warrant or covert search warrant

247 Application of Division (1) This Division applies to—

(a) search warrants; and

(b) covert search warrants.

(2) A search warrant may be issued in relation to—

(a) an indictable offence; or

(b) a summary offence under the Drugs, Poisons and Controlled Substances Act 1981; or

(c) an offence under a law in force in a place outside Victoria that corresponds to an offence under Part V of the Drugs, Poisons and Controlled Substances Act 1981.

(3) A covert search warrant may be issued in relation to an indictable offence for which the maximum penalty is 10 years imprisonment or more.

248 Covert search not permitted without search warrant authorisation

A covert search of premises must not be conducted unless the search warrant authorising the search expressly authorises a covert search.

249 Who may apply for a search warrant or a covert search warrant

(1) A senior police officer may apply to a magistrate for the issue of a search warrant under this Part.



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(2) A senior police officer who has been authorised to make the application by a police officer of or above the rank of inspector may apply for the issue of a covert search warrant under this Part.

Note

Section 3 provides that senior police officer means a police officer of or above the rank of senior sergeant.

250 Application for search warrant or covert search warrant

An application for a search warrant or a covert search warrant must be—

(a) in writing in the prescribed form; and

(b) supported by the evidence on oath, whether oral or by affidavit, of a senior police officer.

Note

An application for a warrant is not an application for an order and therefore Part 7.1 does not apply.

251 Information to be included in application for search warrant

An application for a search warrant must include the following information—

(a) the name and rank of the applicant;

(b) particulars of the grounds on which the application is based, including the nature and seriousness of the offence involved;

(c) the address or other description of the premises to be searched;

(d) if the warrant is sought to search for a particular thing, a full description of that thing and, if known, its location;

(e) if the warrant is sought to search for a kind of thing, a description of the kind of thing;



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(f) if a previous application for the same warrant was refused, details of the refusal;

(g) the prescribed information, if any. Note

Premises is defined in section 3 as including a vehicle.

252 Information to be included in application for covert search warrant

An application for a covert search warrant must include the information required by section 251 and the following information—

(a) the name, if known, of the occupier of the premises that is the subject of the application;

(b) the name of any person who the applicant believes has committed, is committing or will commit the offence;

(c) the covert search warrant offence;

(d) whether the occupier of the premises to be searched is believed to be involved in the commission of the offence and, if so, the name of the occupier;

(e) if known, a description of the kinds of things that may be placed in substitution for a seized thing;

(f) if the applicant proposes, for the purposes of entering the premises that are the subject of the application, to enter without consent other places that adjoin or provide access to those premises—

(i) the address or other description of those other places; and

(ii) particulars of the grounds on which entry to those other places is required;



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(g) details of any covert search warrant that has previously been issued in respect of the premises to be searched.

253 Determination of application for search warrant A magistrate may issue a search warrant if satisfied that there are reasonable grounds to believe that there is, or will be within the next 72 hours, in or on any premises in Victoria any evidentiary material relevant to an offence referred to in section 247(2) that—

(a) has been committed; or

(b) is suspected to have been committed; or

(c) is being committed; or

(d) is likely to be committed within the next 72 hours.

Note

Evidentiary material is defined in section 3.

254 Determination of application for covert search warrant

(1) A magistrate may issue a covert search warrant if satisfied that there are reasonable grounds to believe that—

(a) there is, or will be within the next 10 days, in or on the premises a thing of a kind connected with a covert search warrant offence; and

(b) it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises; and

(c) the issuing of the covert search warrant is justified in the circumstances.



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(2) In considering whether the issuing of a covert search warrant is justified, the magistrate must have regard to the following—

(a) whether it is necessary for the entry and search of the premises that are the subject of the application to occur without the knowledge of any occupier of those premises;

(b) the nature and seriousness of the covert search warrant offence in relation to which the application is made;

(c) the extent to which the issue of the warrant may affect the privacy of a person who is not believed to be involved in the commission of the offence in relation to which the application is made;

(d) if the applicant proposes, for the purposes of entering the premises that are the subject of the application, to enter without consent other places that adjoin or provide access to those premises, whether this is reasonably necessary—

(i) to enable access to the premises that are the subject of the application; or

(ii) to avoid compromising the investigation of any offence;

(e) whether any conditions should be imposed by the magistrate in relation to the execution of the warrant.

(3) If a magistrate is not satisfied of the matters referred to in subsection (1), the magistrate may instead issue a search warrant under section 253 but only if satisfied of the matters referred to in section 253.



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(4) This section does not derogate from any other provisions with regard to warrants to search in this or any other Act.

255 Form and content of search warrant (1) A search warrant, including a covert search

warrant, must be in the prescribed form and contain the prescribed information.

(2) A covert search warrant must specify the following—

(a) the address or other description of any place that adjoins or provides access to the premises in respect of which the covert search warrant is issued and that may be entered under the covert search warrant for the purpose of entering the premises;

(b) if known, the name of the occupier of the premises to be searched;

(c) the name of any person believed to have committed, or to be intending to commit, the covert search warrant offence to which the warrant relates;

(d) whether the occupier is believed to be involved in the commission of the covert search warrant offence;

(e) a description of the kinds of things that may be placed in substitution for a seized thing;

(f) whether an extension of time is granted under section 264 for the giving of notice to—

(i) the occupier of the premises to be searched; or



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(ii) the occupier of any place that may be entered under the covert search warrant for the purpose of entering the premises;

Note

Sections 264 and 265 provide for extension of time for notifying the occupier of searched premises.

(g) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night;

(h) the conditions, if any, imposed in relation to the execution of the covert search warrant;

(i) any other prescribed matters.

(3) Without limiting subsection (2)(h), a covert search warrant may include any of the following conditions authorising the police officer executing it—

(a) for the purposes of entering the premises that are the subject of the warrant, to enter without consent other places that adjoin or provide access to those premises;

(b) to seize and return or substitute, in accordance with section 275, any thing specified in the warrant.

256 Covert search warrants and privilege (1) A magistrate must not authorise in a covert search

warrant the seizure of any thing or document, or any kind of thing or document, unless the magistrate has determined whether there is a reasonable possibility that the thing or document specified, or a thing or document of the kind specified, may be of a kind referred to in Division 1 (client legal privilege), 1C (journalist privilege) or 3 (evidence excluded in the public



188

interest) of Part 3.10 of Chapter 3 of the Evidence Act 2008.

(2) If a magistrate determines that there is a reasonable possibility that the thing or document specified, or a thing or document of the kind specified, may be of a kind referred to in subsection (1), the magistrate must specify in the covert search warrant that if the thing or document specified, or a thing or document of the kind specified, is seized, it must be sealed and dealt with in accordance with Division 6.

257 Authority conferred by search warrant and covert search warrant

A search warrant and a covert search warrant authorises the police officer executing it—

(a) to enter, if necessary by force, and search the premises named or described in the warrant, and every person found at the premises, for the thing or document specified in the warrant; and

(b) to make a copy of any document that the police officer reasonably considers to be evidentiary material relevant to the offence specified in the warrant or any other indictable offence; and

(c) to seize any thing or document—

(i) specified in the warrant, or of a kind of thing specified in the warrant; or

(ii) that the police officer reasonably believes to be evidentiary material relevant to the offence specified in the warrant or any other indictable offence; and

(d) to operate electronic equipment in accordance with Division 4; and



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(e) to do anything authorised by the warrant under section 255.

Note

Premises is defined in section 3 as including a vehicle.

258 Magistrate may give direction in warrant as to tainted property

(1) A magistrate who issues a search warrant or covert search warrant, if satisfied by the evidence given in support of the application for the warrant that there are reasonable grounds to believe that the thing or document to which the warrant relates is also tainted property within the meaning of the Confiscation Act 1997, may, in that warrant, direct that the police officer executing the warrant hold or retain that thing or document as if it were tainted property seized under a warrant under section 79 of that Act as and from the date when that thing or document is no longer required for the purposes of a criminal proceeding.

(2) A direction under subsection (1) in relation to an offence against the Drugs, Poisons and Controlled Substances Act 1981 or regulations made under that Act—

(a) may be made only in relation to an offence which is a Schedule 1 offence within the meaning of the Confiscation Act 1997; and

(b) does not apply to any thing that may be destroyed or disposed of under section 273(2)(b) or 274(2).

Division 2—Execution of warrant

259 Search warrant and covert search warrant to be executed by day

Unless a search warrant or covert search warrant otherwise provides, a search warrant or covert search warrant may be executed only between the



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hours of 6 a.m. and 9 p.m. on any day unless a senior police officer is satisfied on reasonable grounds that—

(a) the execution of the warrant is unlikely to be effective during those hours; or

(b) there is likely to be significantly less risk to the safety of any person if the warrant is executed outside those hours; or

(c) an occupier of the premises is likely to be present at the premises only outside those hours; or

(d) for any other reason, it is necessary to execute the warrant outside those hours.

260 Announcement before entry (1) Subject to subsection (2), a person executing a

search warrant—

(a) must announce that the person is authorised by the warrant to enter the premises; and

(b) if the person has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.

(2) A person executing a search warrant need not comply with subsection (1) if the person believes on reasonable grounds that immediate entry to the premises is required to ensure—

(a) the safety of any person; or

(b) that the effective execution of the search warrant is not frustrated.

(3) This section does not apply to a covert search warrant.



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261 Person executing search warrant must make identity known and provide copy of the search warrant

(1) If an occupier is present at premises where a search warrant is being executed, the person executing the warrant must—

(a) make known to the occupier the identity of the person; and

(b) give the occupier a copy of the warrant.

(2) If an occupier is not present at premises where a search warrant is being executed, the person executing the warrant must—

(a) make known to a person at the premises who is apparently of or over the age of 18 years the identity of the person; and

(b) give that person a copy of the warrant.

(3) If there is no person apparently of or over the age of 18 years present at the premises where the search warrant is being executed, the person executing the warrant must leave a copy of the warrant in a conspicuous place at the premises.

(4) This section does not apply to a covert search warrant.

262 Notice to occupier of premises entered in accordance with covert search warrant

(1) If a police officer executes a covert search warrant, the police officer must serve notice of the covert search, by personal service, on the occupier of the premises searched.

(2) Notice under subsection (1) must—

(a) specify—

(i) the name or code name of the person who applied for the warrant; and



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(ii) the date and the time when the warrant was issued; and

(iii) the date of execution of the warrant; and

(iv) the address or other description of the premises searched; and

(b) contain a summary of the nature of the warrant and the powers conferred by the warrant; and

(c) contain any other prescribed information. Note

Section 268(5) requires a police officer to give the occupier a receipt for anything seized under the warrant at the same time as providing notice under subsection (1).

(3) Notice under subsection (1) must be served—

(a) within 28 days after the covert search warrant is executed; or

(b) if an application for an order under section 265 has been made, whichever is the later of—

(i) the date specified in any order made; or

(ii) if the application is refused, 7 days after determination of the application.

263 Notice to occupier of adjoining premises entered in accordance with covert search warrant

(1) Subject to subsection (5), if a police officer enters premises adjoining or providing access to the premises that are the subject of a covert search warrant, the police officer must provide the person who was occupier of the premises that adjoin or provide access to the premises at the time of that entry with notice of the covert search.



193

(2) Notice under subsection (1) must specify—

(a) the name or code name of the person who applied for the warrant; and

(b) the date when the warrant was issued; and

(c) the address or other description of the premises that are the subject of the warrant; and

(d) the prescribed information, if any.

(3) A police officer may provide notice to a person under subsection (1) by—

(a) personal service; or

(b) leaving the notice in a prominent place at the premises that adjoin or provide access to the premises being searched.

(4) Notice under subsection (1) must be served—

(a) within 28 days after the covert search warrant is executed; or

(b) if an application for an order under section 265 has been made, whichever is the later of—

(i) the date specified in any order made; or

(ii) if the application is refused, 7 days after determination of the application.

(5) This section does not apply if the covert search warrant contains a direction that notice of entry into particular premises that adjoin or provide access to the premises that are the subject of the warrant need not be provided.



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264 Application for extension of time for notifying occupier of premises or adjoining premises entered in accordance with covert search warrant

(1) If a police officer who is required to serve notice under section 262 or 263 in relation to a covert search warrant believes on reasonable grounds that serving the notice may prejudice the investigation of the offence specified in the warrant or another investigation, the police officer may apply to the magistrate who issued the warrant for an extension of the period within which the notice under section 262 or 263 must be served.

(2) An application under subsection (1) must not be made later than 28 days after the execution of the covert search warrant.

(3) An application under subsection (1) must—

(a) be in writing in the prescribed form; and

(b) be supported by evidence on oath, whether oral or by affidavit, given by a senior police officer; and

(c) state the grounds on which the application is made.

265 Determination of application for extension of time

(1) On an application under section 264, a magistrate may extend by not more than 6 months the period within which a notice under section 262 or 263 must be served.

(2) A magistrate may not make an order under subsection (1) unless satisfied that it is in the interests of justice to make that order.

(3) Service of a notice under section 262 or 263 may be extended on more than one occasion but must not be extended beyond 3 years in total.



195

266 Report to magistrate after executing covert search warrant

(1) A police officer who is issued with a covert search warrant must make and sign a report on the execution or non-execution of the warrant.

(2) A report under subsection (1) must be given to the magistrate who issued the covert search warrant not later than 10 days after the execution or expiry of the warrant, whichever is the earlier.

(3) A report under subsection (1) made in relation to a covert search warrant that was executed must contain particulars of—

(a) the date on which the warrant was executed; and

(b) the name or code name of the police officer in charge of the execution of the warrant; and

(c) the powers that were executed under the warrant; and

(d) the result of the execution of the warrant, including—

(i) a description of any thing seized, placed in substitution for a seized thing, or inspected; and

(ii) the name of any persons arrested; and

(iii) a description of any sample taken; and

(iv) details of any operation of electronic equipment, and any material produced, seized, inspected or copied.

(4) A report under subsection (1) made in relation to a covert search warrant that was not executed must contain reasons why the warrant was not executed.



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Division 3—Seizure

267 Seized things must be photographed Subject to Division 6, all things seized under a search warrant must be digitally photographed or digitally videorecorded.

268 Police officer must provide receipt for seized things (1) A police officer who seizes a thing while

executing a search warrant must provide a receipt, in accordance with this section, for the thing as soon as practicable after seizing it.

(2) A receipt must contain—

(a) a description of the seized thing; and

(b) clear information about how the seized thing may be dealt with; and

(c) information about the rights of persons with an interest in the seized thing and how the seizure of the thing may be challenged; and

(d) the prescribed information, if any.

(3) A receipt must be given to the occupier of the premises being searched after being—

(a) signed by the most senior police officer executing the warrant; and

(b) signed by the occupier of the premises being searched.

(4) If the occupier of the premises being searched is not available to sign or receive the receipt, the receipt must be—

(a) left in a conspicuous place at the premises being searched; or

(b) served on the occupier in accordance with section 338 within 7 days after the search.



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(5) If a thing is seized under a covert search warrant, the receipt under this section must be given to the occupier of the premises at the same time as the notice under section 262 is served on the occupier, and may be contained in the same document as that notice.

269 Police officer must provide copy of seized things (1) If a police officer, while executing a search

warrant, seizes—

(a) a document, disk, tape or other thing that can be easily copied; or

(b) a storage device the information in which can be easily copied—

the police officer must, if requested to do so by the occupier of the premises being searched (or another person apparently representing the occupier), give a copy of the document, disk, tape, other thing or the information to the occupier or that person as soon as practicable after the seizure.

(2) For the purposes of subsection (1), a document, disk, tape, other thing or piece of information can be easily copied if to do so would not involve unreasonable cost or unreasonable delay.

(3) Subsection (1) does not apply—

(a) to a document seized under section 281(2)(b); or

(b) if possession by the occupier of the document, disk, tape, other thing or piece of information could constitute an offence.

270 Chief Commissioner of Police may retain seized things

(1) This section applies despite anything to the contrary in the Magistrates' Court Act 1989.



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(2) Subject to this Part, the Chief Commissioner of Police may retain any thing seized under a search warrant for as long as it is reasonably required for the purposes of—

(a) the investigation of the offence in relation to which it was seized; or

(b) a criminal proceeding for the offence in relation to which it was seized.

271 Magistrates' Court may order production of seized things


(2) The magistrate who issued the search warrant under which a thing was seized may order that the thing or a photograph of the thing be brought before the Magistrates' Court.

(3) Unless the Magistrates' Court orders otherwise, the court must be closed for the production of a seized thing under subsection (2).

(4) If, on the production of a seized thing under subsection (2), the Magistrates' Court is satisfied that it is in the interests of justice to return the thing, the Court may order that the thing be returned subject to any conditions that it considers appropriate.

272 Seized things may be tested

A police officer may arrange for a thing seized under a search warrant to be tested by a forensic scientist, analyst or botanist.



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273 Police officer may destroy or dispose of seized drug related things


drug of dependence has the same meaning as in section 4 of the Drugs, Poisons and Controlled Substances Act 1981;

drug related item means—

(a) a drug of dependence or a substance that contains a drug of dependence; or

(b) a poison or controlled substance; or

(c) an instrument, device or substance that is or has been used or is capable of being used for or in the cultivation, manufacture, sale or use or in the preparation for cultivation, manufacture, sale or use of a drug of dependence;

poison or controlled substance has the same meaning as in section 4 of the Drugs, Poisons and Controlled Substances Act 1981;

substance has the same meaning as in section 4 of the Drugs, Poisons and Controlled Substances Act 1981.

(2) A police officer who seizes a drug related item while executing a search warrant may—

(a) take any samples of that item that are required for the purposes of this Act or the Drugs, Poisons and Controlled Substances Act 1981; and

(b) if a forensic scientist, analyst or botanist certifies in writing to the police officer executing the warrant that destruction or disposal of the drug related item is required



200

in the interests of health or safety, destroy or dispose of the item as soon as reasonably practicable after completion of the analysis of the item.

(3) A person who is arrested in the execution of a search warrant may request that the Chief Commissioner of Police deliver a part of any sample taken under subsection (2)(a) that is sufficient for analysis to an analyst or botanist nominated by that person.

(4) The Chief Commissioner of Police must comply with a request under subsection (3) unless it would leave the Chief Commissioner of Police with insufficient material for analysis.

274 Police officer may destroy or dispose of seized weapons or explosives


explosives has the same meaning as in the Dangerous Goods Act 1985;

weapon includes—

(a) a prohibited weapon within the meaning of the Control of Weapons Act 1990; and

(b) a dangerous article within the meaning of the Control of Weapons Act 1990.

(2) A police officer who seizes a weapon or explosives while executing a search warrant may destroy or dispose of the weapon or explosives if the police officer believes on reasonable grounds that the weapon or explosives—

(a) pose an immediate danger to the health or safety of any person; or



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(b) would pose an immediate danger to the health or safety of any person if the weapon or explosives were moved.

275 When things seized under covert search warrant may be returned or substituted


(2) Subject to subsections (3) and (4), if a thing is seized under a covert search warrant, a police officer may re-enter any premises referred to in the covert search warrant to—

(a) return the thing; or

(b) substitute for the thing another thing of a similar kind (other than a surveillance device within the meaning of the Surveillance Devices Act 1999).

(3) A police officer may only re-enter premises under subsection (2)—

(a) not later than 7 days after the thing was seized; or

(b) if an order under section 277 has been made, before the date specified in that order.

(4) A police officer may re-enter premises under subsection (2) only once.

276 Application for extension of time to return or substitute things seized under covert search warrant

(1) Subject to subsection (2), a police officer may apply to the magistrate who issued a covert search warrant for an order specifying a date by which a thing seized under the warrant must be returned or substituted (as the case requires).

(2) A police officer must not make an application under subsection (1) unless the police officer believes on reasonable grounds that—



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(a) the investigation of the offence specified in the covert search warrant or another investigation would be prejudiced if the thing were returned or substituted (as the case requires) within 7 days of it being seized; and

(b) that prejudice would not occur if the thing were returned or substituted (as the case requires) within 14 days of it being seized.

(3) An application under subsection (1) must—

(a) be in writing; and

(b) be supported by evidence on oath, whether oral or by affidavit, given by a senior police officer; and

(c) specify a date (not later than 14 days after the thing was seized) by which it is proposed that the seized thing would be returned or substituted (as the case requires).

(4) An application under subsection (1) may not be made—

(a) later than 7 days after the thing was seized; or

(b) in respect of a seized thing that has already been the subject of an order extending time under section 277.

Notes





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277 Determination of application for extension of time to return or substitute things seized under covert search warrant

On an application under section 276, a magistrate may extend the time for re-entry under section 275(2) to return or substitute things seized to a specified date (not later than 14 days after the thing was seized) if the magistrate is satisfied that the grounds on which the application have been made are established.

278 Police officer must report to magistrate about returning or substituting things seized under covert search warrant

(1) A police officer who re-enters premises for the purpose of—

(a) returning a seized thing; or

(b) substituting another thing for that thing—

must make and sign a report on that return or substitution.

(2) A report under subsection (1) must be given to the magistrate who issued the covert search warrant not later than 10 days after the date of re-entry.

(3) A report under subsection (1) must contain the following particulars—

(a) any premises specified in the covert search warrant that was entered for the purpose of substituting or returning (as the case requires) a seized thing;

(b) the name or code name of any person who entered premises referred to in paragraph (a) for that purpose;

(c) a description of the seized thing;



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(d) if the seized thing was substituted, a description of the thing that was substituted for it;

(e) if the seized thing was not returned or substituted, the reason why the seized thing was not returned or substituted.

279 Ministerial arrangements for things seized in connection with extra-territorial offences


appropriate authority means—

(a) in relation to another State or a Territory (other than the Australian Capital Territory), an authority exercising, in relation to the police force of that State or Territory, functions corresponding to those of the Chief Commissioner of Police in relation to the police force of Victoria; or

(b) in relation to the Australian Capital Territory, the Commissioner of the Australian Federal Police.

(2) The Minister may enter into arrangements with a Minister of another State or a Territory under which—

(a) things seized under this Act that may be relevant to the investigation of an offence against the law of that other State or Territory—

(i) are to be transmitted to the appropriate authority in that State or Territory for the purposes of the investigation of, or proceedings in respect of, that offence; and



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(ii) when no longer required for the purposes of any such investigation or proceedings, are (unless disposed of by order or direction of a court or magistrate) to be returned to the Chief Commissioner of Police; and

(b) things seized under the law of that other State or Territory that may be relevant to the investigation of an offence against the law of Victoria—

(i) are to be transmitted to the Chief Commissioner of Police; and

(ii) when no longer required for the purposes of the investigation of an offence, or proceedings in respect of an offence, are (unless disposed of by order or direction of a court or magistrate) to be returned to the appropriate authority in the State or Territory in which they were seized.

Division 4—Assistance in executing search warrant or covert search warrant

280 Police may use assistants and equipment (1) A police officer executing a search warrant or

covert search warrant may—

(a) seek the assistance of another person (an assistant) who possesses specialised skills or technical knowledge necessary for exercising a power authorised by the warrant; or

(b) take onto the premises any equipment, vehicle, animal or material that the police officer reasonably requires for exercising a power authorised by the warrant.



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(2) The police officer may authorise an assistant—

(a) to take stated action at the premises; and

(b) to exercise stated powers that the police officer is authorised by the warrant to exercise.

(3) For the purposes of subsection (2), the police officer—

(a) is only permitted to authorise an assistant to take stated action or exercise stated powers that are consistent with the specialist skills or technical knowledge of the assistant; and

(b) cannot authorise the assistant to arrest a person.

(4) The police officer must inform the assistant of—

(a) action the assistant is authorised to take; and

(b) the assistant's powers under this section.

281 Police officer may operate electronic equipment at premises being searched

(1) A police officer executing a search warrant may operate electronic equipment at the premises being searched to see whether evidentiary material is accessible by doing so if the police officer believes on reasonable grounds that the equipment can be operated without damage to the equipment.

(2) If, after operating the equipment, the police officer executing a search warrant finds that evidentiary material is accessible by doing so, the police officer may—

(a) subject to subsection (3), seize the equipment and any disk, tape or other associated device; or



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(b) if the material can be put in documentary form by using facilities at the premises being searched, operate the facilities to put the material in that form and seize the documents so produced; or

(c) operate the equipment or other facilities to copy the material to a disk, tape or other storage device that—

(i) is brought to the premises being searched; or

(ii) is at the premises being searched if the occupier of the premises has agreed in writing to—

(A) the use of the disk, tape or other storage device being used for that purpose; and

(B) the removal of the disk, tape or other storage device from the premises.

(3) Equipment must not be seized under subsection (2)(a) unless—

(a) it is not practicable to put the material in documentary form under subsection (2)(b) or to copy the material under subsection (2)(c); or

(b) possession of the electronic equipment by an occupier could constitute an offence.

282 Police officer may arrange for expert to operate electronic equipment at premises being searched

(1) This section applies to a police officer executing a search warrant who believes on reasonable grounds that—



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(a) evidentiary material may be accessible by operating electronic equipment at the premises being searched; and

(b) expert assistance is required to operate the equipment; and

(c) if the police officer does not take action under this section, the material may be destroyed, altered or otherwise interfered with.

(2) A police officer referred to in subsection (1) may—

(a) do whatever is necessary to secure the electronic equipment in accordance with subsection (4), including—

(i) locking the equipment in a secure room; and

(ii) guarding or placing a guard at the equipment; and

(b) arrange for an expert to attend and operate the equipment.

(3) A police officer must give to the occupier of the premises being searched notice of—

(a) the intention of the police officer to secure the electronic equipment; and

(b) the fact that the equipment may be secured for a period not exceeding 24 hours.

(4) Unless a magistrate makes an order under section 284, the equipment may be secured for a period not exceeding 24 hours or until it is operated by an expert, whichever is the earlier.



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283 Application for extension of time to allow expert to attend

(1) If a police officer executing a search warrant believes on reasonable grounds that expert assistance will not be available within 24 hours after electronic equipment is secured, the police officer may apply to the magistrate who issued the search warrant for an extension of that period not exceeding 7 days from the making of the order.

(2) An applicant must give notice to the occupier of the premises being searched—

(a) that the police officer intends to apply for an extension of the period during which electronic equipment is secured; and

(b) that the occupier is entitled to be heard in relation to the application.

(3) The occupier of the premises being searched is entitled to be heard in relation to an application under subsection (1).

284 Determination of application for extension of time to allow expert to attend

(1) On an application under section 283, a magistrate may order that the equipment to which that application relates may be secured for a period not exceeding 7 days or until it is operated by an expert (whichever is the earlier) if the magistrate is satisfied that expert assistance will not be available within 24 hours after the equipment is secured.

(2) A magistrate may make an order under subsection (1) in relation to particular equipment more than once.



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285 Power to require assistance from person with knowledge of a computer or computer network

(1) This section applies if a magistrate has issued a search warrant or a covert search warrant under this Part.

(2) The Magistrates' Court may, on the application of a senior police officer, make an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a police officer to do one or more of the things specified in subsection (3).

(3) The things are—

(a) access data held in, or accessible from, a computer or data storage device that—

(i) is on warrant premises; or

(ii) has been seized under the warrant and is at a place other than warrant premises;

(b) copy to another data storage device data held in, or accessible from, a computer, or data storage device, described in paragraph (a);

(c) convert into documentary form or another form intelligible to a police officer—

(i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or

(ii) data held in a data storage device to which the data was copied as described in paragraph (b).

(4) An application may be made under subsection (2) at the same time as an application is made for the search warrant or covert search warrant or at any time after the issue of the warrant.



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(5) The Magistrates' Court may make the order if satisfied that—

(a) there are reasonable grounds for suspecting that data held in, or accessible from, a computer, or data storage device, described in subsection (3)(a) will afford evidence as to the commission of an indictable offence; and

(b) the specified person is—

(i) reasonably suspected of having committed an indictable offence in relation to which the warrant was issued; or

(ii) the owner or lessee of the computer or device; or

(iii) an employee of the owner or lessee of the computer or device; or

(iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or

(v) a person who uses or has used the computer or device; or

(vi) a person who is or was a system administrator for the computer network of which the computer or device forms or formed a part; and

(c) the specified person has relevant knowledge of—

(i) the computer or device or a computer network of which the computer or device forms or formed a part; or

(ii) measures applied to protect data held in, or accessible from, the computer or device.



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(6) A person is not excused from complying with an order on the ground that complying with it may result in information being provided that might incriminate the person.

(7) An order does not have effect on or after the completion of the execution of the warrant if—

(a) the computer or data storage device that is the subject of the order is seized under the warrant; and

(b) the order was granted on the basis of an application made before the seizure.

Note

An application for another order under this section relating to the computer or data storage device may be made after the completion of the execution of the warrant.

(8) If the computer or data storage device is not on warrant premises, the order must—

(a) specify the period within which the person must provide the information or assistance; and

(b) specify the place at which the person must provide the information or assistance; and

(c) specify the conditions (if any) to which the requirement to provide the information or assistance is subject.

(9) In this section access, data, data held in a computer and data storage device have the meanings given by section 247A(1) of the Crimes Act 1958.



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286 Offence in relation to assistance in executing search warrants

(1) A person commits an indictable offence if—

(a) the person has relevant knowledge of—

(i) the computer or data storage device or a computer network of which the computer or data storage device forms or formed a part; or

(ii) measures applied to protect data held in, or accessible from, the computer or data storage device; and

(b) the person is informed by a police officer—

(i) of the order made under section 285 and of its terms; and

(ii) that it is an indictable offence punishable by imprisonment to fail to comply with the order; and

(c) the person fails to comply with the order without reasonable excuse.

(2) A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

(3) In this section access, data, data held in a computer and data storage device have the meanings given by section 247A(1) of the Crimes Act 1958.

Division 5—Confiscation Act 1997

287 Notice that seized thing is being held for purposes of Confiscation Act 1997

(1) If a thing or document seized under a search warrant containing a direction under section 258 is no longer required for the purposes of a criminal proceeding, the police officer who executed the



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warrant must serve notice, by personal service, on all persons known to have an interest in that thing or document that the thing or document is being held or retained as if it were tainted property seized under a warrant under section 79 of the Confiscation Act 1997.

(2) A notice under subsection (1) must be—

(a) in the prescribed form; and

(b) served within 7 days after the thing or document is no longer required for the purposes of a criminal proceeding.

288 Application for tainted property to be held or retained

(1) A police officer who seizes a thing or document in accordance with a search warrant may apply to the Magistrates' Court for a direction that the thing or document so seized be held or retained as if it were tainted property seized under a warrant under section 79 of the Confiscation Act 1997.

(2) An application may be made under subsection (1) only if the search warrant does not contain a direction under section 258.

Notes



289 Court may make direction (1) On an application under section 288, if the

Magistrates' Court is satisfied that there are reasonable grounds to believe that the thing or document seized under the search warrant is tainted property within the meaning of the Confiscation Act 1997, the court may direct that the thing or document be held or retained by the



215

applicant as if it were tainted property seized under a warrant under section 79 of that Act.

(2) A direction under this section takes effect on and from the date on which the thing or document is no longer required for the purposes of a criminal proceeding.

(3) In determining whether the thing or document that is the subject of the application is in fact tainted property within the meaning of the Confiscation Act 1997, the Magistrates' Court may require the applicant to provide any information that the court considers necessary.

(4) The power of the Magistrates' Court under this section is in addition to its powers under section 271.

290 Notice of direction under section 289 (1) If the Magistrates' Court makes a direction under

section 289, the applicant for the direction must serve notice, by personal service, on all persons known to have an interest in the thing or document to which the direction applies that the thing or document is being held or retained as if it were tainted property seized under a warrant under section 79 of the Confiscation Act 1997 by virtue of a direction made under section 289.

(2) A notice under subsection (1) must be—

(a) in the prescribed form; and

(b) served within 7 days after the thing or document is no longer required for the purposes of a criminal proceeding.

291 Effect of directions under section 289

If a direction has been made under section 289, the thing or document to which the direction applies—



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(a) is taken, on and from the date on which the thing or document is no longer required for the purposes of a criminal proceeding, to have been seized as tainted property under a warrant under section 79 of the Confiscation Act 1997; and

(b) is to be dealt with under that Act accordingly.

Division 6—Privilege claims in relation to search warrants

292 What is privilege? For the purposes of this Division, a document or other thing, or material contained in a document or other thing, is the subject of privilege if it is of a kind referred to in Division 1 (client legal privilege), 1C (journalist privilege) or 3 (evidence excluded in the public interest) of Part 3.10 of Chapter 3 of the Evidence Act 2008.

293 Privilege claims in relation to search warrants (1) This section applies if—

(a) a police officer executing a search warrant wishes to inspect, copy or seize a document or other thing under the warrant; and

(b) a person who is entitled to claim privilege (the claimant) claims that the document or other thing is, or contains material that is, the subject of privilege.

(2) The police officer must consider the claim of client legal privilege and either—

(a) cease exercising the power under the search warrant in relation to the document or other thing over which the claim of privilege is made; or

(b) require the claimant to immediately seal the document or other thing in an envelope or



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otherwise secure it if it cannot be sealed in an envelope, and give it to the police officer.

(3) The police officer must not inspect the document or other thing in considering the claim of privilege.

(4) If the police officer requires the claimant to give the document or other thing to the police officer under subsection (2)(b), the police officer must—

(a) notify the Chief Commissioner of Police as soon as practicable; and

(b) give the document or other thing, or cause it to be given, to a registrar of the Magistrates' Court as soon as practicable and in any event within 3 days after receiving it from the claimant, to be held in safe custody.

(5) A person must not open a sealed envelope or interfere with a document or other thing secured otherwise than in an envelope before delivery to a registrar of the Magistrates' Court.

294 Application to court to determine privilege (1) Within 7 days after a sealed envelope or document

or other thing secured otherwise than in an envelope is given to a registrar of the Magistrates' Court under section 293, the Chief Commissioner of Police may apply to the court to determine whether or not the document or other thing is, or contains material that is, the subject of privilege.

(2) If no application is made under subsection (1) within the period of 7 days, the registrar must return the document or other thing to the claimant for privilege and must destroy any copies.

(3) The Chief Commissioner of Police must serve notice of the application, by personal service, on the claimant for privilege a reasonable time before the hearing of the application.



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(4) Notice under subsection (3) must be in the prescribed form, if any.

(5) The claimant is entitled to appear and be heard on the hearing of the application.

Notes



295 Determination of privilege claims (1) The Magistrates' Court must determine whether or

not the document or other thing is, or contains material that is, the subject of privilege and for that purpose a magistrate and any other person authorised by the court may—

(a) open the sealed envelope or access the document or other thing secured otherwise than in an envelope; and

(b) inspect the document or other thing.

(2) If the Magistrates' Court determines that the document or other thing is, or contains material that is, the subject of privilege, the court must order that the document or other thing or material that is the subject of privilege be returned to the claimant and any copies be destroyed.

(3) If the Magistrates' Court determines that the document or other thing is not, or only contains material that is not, the subject of privilege, the court must order that the document or other thing be given to the Chief Commissioner of Police.



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296 Privilege in relation to covert search warrants—before thing seized

(1) This section applies if—

(a) a police officer executing a covert search warrant wishes to inspect, copy or seize a document or other thing under the warrant; and

(b) there are reasonable grounds to suspect that the document or other thing is, or contains material that is, the subject of privilege.

(2) The police officer must either—

(a) cease exercising the power under the search warrant in relation to the document or other thing; or

(b) immediately seal the document or other thing in an envelope or otherwise secure it if it cannot be sealed in an envelope.

(3) The police officer must not inspect the document or other thing before sealing or securing it.

(4) If the police officer seals or secures the document or other thing under subsection (2)(b), the police officer must—


(b) give the document or other thing, or cause it to be given, to a registrar of the Magistrates' Court as soon as practicable and in any event within 3 days after sealing or securing it, to be held in safe custody.




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297 Privilege in relation to covert search warrants—after thing seized

(1) This section applies if—

(a) a police officer executing a covert search warrant inspects a document or other thing copied or seized under the warrant; and

(b) there are reasonable grounds to suspect that the document or other thing is, or contains material that is, the subject of privilege.

(2) The police officer must immediately—

(a) cease exercising the power under the search warrant in relation to the document or other thing; or

(b) immediately seal the document or other thing in an envelope or otherwise secure it if it cannot be sealed in an envelope.

(3) If the police officer seals or secures the document under subsection (2)(b), the police officer must—


(b) give the document or other thing, or cause it to be given, to a registrar of the Magistrates' Court as soon as practicable and in any event within 3 days after sealing or securing it, to be held in safe custody.




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298 Application to court to determine privilege in relation to covert search warrants

(1) Within 7 days after a sealed envelope or document or other thing secured otherwise than in an envelope is given to a registrar of the Magistrates' Court under section 296 or 297, the Chief Commissioner of Police must apply to the court to determine whether or not the document or other thing is, or contains material that is, the subject of privilege.

(2) If no application is made under subsection (1) within the period of 7 days, the registrar must give the document or other thing to the Chief Commissioner of Police for the purpose of returning it covertly to the premises from where it was seized.

299 Determination of privilege in relation to covert search warrants

(1) The Magistrates' Court must determine whether or not the document or other thing is, or contains material that is, the subject of privilege and for that purpose a magistrate and any other person authorised by the court may—

(a) open the sealed envelope or access the document or other thing secured otherwise than in an envelope; and

(b) inspect the document or other thing.

(2) If the Magistrates' Court determines that the document or other thing is, or contains material that is, the subject of privilege, the court must order—

(a) if the document or other thing is a copy, that the copy be destroyed; or



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(b) if the document or other thing is not a copy, that—

(i) the document or other thing be given to the Chief Commissioner of Police for the purpose of returning it covertly to the premises from where it was seized; or

(ii) the document or other thing be returned by the Chief Commissioner of Police to the occupier of the premises searched at the same time as the occupier is notified of the covert search warrant under section 262 and the document or other thing be held by the court pending that return.

(3) If the Magistrates' Court determines that the document or other thing is not, or only contains material that is not, the subject of privilege, the court must order that the document or other thing be given to the Chief Commissioner of Police.

300 Offences in relation to sealed documents or other things

(1) Except in accordance with section 295 or 299, a person must not open a sealed envelope or otherwise have access to the document or other thing contained in the sealed envelope before—

(a) the Magistrates' Court determines whether the document or other thing is, or contains material that is, the subject of privilege; or

(b) the document or other thing is returned to—

(i) the claimant; or

(ii) the person from whom or premises from which it was seized.

Penalty: Level 8 imprisonment (1 year maximum).



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(2) Except in accordance with section 295 or 299, a person must not open or otherwise have access to a document or other thing secured otherwise than in an envelope before—

(a) the Magistrates' Court determines whether the document or other thing is, or contains material that is, the subject of privilege; or

(b) the document or other thing is returned to—

(i) the claimant; or

(ii) the person from whom or premises from which it was seized.



301 Death, absence of magistrate who issued warrant If the magistrate who issued a search warrant or covert search warrant has died, has ceased to be a magistrate or is absent—

(a) a report required to be provided to that magistrate under section 266 or 278 may be provided to any other magistrate; and

(b) a power exercisable by that magistrate under section 271, 277 or 284 may be exercised by any other magistrate.

__________________

Part 6.3—Warrants for Attendance at Hearings, for Fingerprinting or for Forensic Procedure


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PART 6.3—WARRANTS FOR ATTENDANCE AT HEARINGS, FOR FINGERPRINTING OR FOR FORENSIC PROCEDURE

302 Application of Part This Part applies to a warrant in respect of a person who is the subject of an order, or an application for an order, under—

(a) Chapter 4 (Fingerprints); or

(b) Chapter 5 (Forensic Procedures).

303 Application for warrant (1) A police officer may apply for the issue of a

warrant under this Part.

(2) An application for a warrant must be—

(a) in writing in the prescribed form; and

(b) supported by the evidence on oath, whether oral or by affidavit, of a senior police officer.

(3) An application may be made under this section in respect of a person who is the subject of an application for an order under Chapter 4 or 5 at the same time as the making of the application for that order.

Note

An application for a warrant is not an application for an order and therefore Part 7.1 does not apply.

304 Information to be included in application for warrant

An application for a warrant under this Part must include the following information—

(a) the name and rank of the applicant;

(b) the name of the person who is the subject of an order, or an application for an order, under Chapter 4 or 5;



225

(c) the nature of the order made, or that is being sought, under Chapter 4 or 5 in respect of that person;

(d) that date on which the order or application for an order under Chapter 4 or 5 was made;

(e) the court in which the order or application for an order under Chapter 4 or 5 was made;

(f) the prescribed information, if any.

305 Application for warrant may be made electronically (1) If transmission by electronic communication is

available, an applicant for a warrant under this Part may transmit a copy of the application and affidavit (whether sworn or unsworn) to the judge, magistrate or registrar who is to hear the application by audio link or audio visual link.

(2) Not later than the day following the making of an application referred to in subsection (1), the applicant must send the application and the sworn affidavit to the judge, magistrate or registrar who heard the application, whether or not a warrant is issued.

306 Determination of application for warrant

(1) A judge, magistrate or registrar of a court may issue a warrant under this Part in respect of a person who is the subject of an order, or an application for an order, under Chapter 4 or 5 if the judge, magistrate or registrar is satisfied that there are reasonable grounds for doing so.

(2) A warrant may be issued in respect of a person who is the subject of an order under Chapter 4 or 5 at the same time as the making of that order.

(3) Section 76 of the Magistrates' Court Act 1989 applies to a warrant issued under this Part as if it were a search warrant.



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307 Form and content of warrant (1) A warrant issued under this Part must be in the

prescribed form and contain the prescribed information.

(2) If the person named in the warrant is a detained person, a warrant issued under this section must direct the officer in charge of the premises where the person is held to deliver the person into the custody of the applicant for the warrant or another police officer for the purposes of section 308(c), (d) and (e). Note

See the definition of detained person in section 3.

(3) If a warrant is issued under this section on an application made by electronic communication, the person issuing the warrant must cause a copy of the warrant to be transmitted to the applicant by similar means.

308 Authority conferred by warrant A warrant issued under this Part authorises the person to whom it is directed—

(a) to enter, if necessary by force, and search, by day or by night, any premises where the person named in the warrant is suspected to be; and

(b) to arrest the person named in the warrant; and

(c) if this Act requires the attendance of the person at the hearing of an application for an order under Chapter 4 or 5, to bring the person before the court for the hearing of the application; and



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(d) if on the application the court orders that the person's fingerprints be taken, to detain the person for as long as reasonably permits the taking of the fingerprints; and

(e) if on the application the court orders that a forensic procedure be conducted on the person, to detain the person for as long as reasonably permits the conduct of the forensic procedure.

309 Announcement before entry (1) Subject to subsection (2), a person executing a

warrant issued under this Part who enters premises—

(a) must announce that the person is authorised by the warrant to enter the premises; and

(b) if the person has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.

(2) A person executing a warrant issued under this Part need not comply with subsection (1) if the person believes on reasonable grounds that immediate entry to the premises is required to ensure—

(a) the safety of any person; or

(b) that the effective execution of the warrant is not frustrated.

310 Expiry of warrant to arrest

(1) If a person is arrested under a warrant issued under this Part, the warrant ceases to have effect—

(a) immediately after the hearing of the application referred to in section 308(c); or



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(b) if on that application the court orders that the person's fingerprints be taken or that a forensic procedure be conducted on the person, immediately after that procedure is completed or on the expiry of a reasonable time (whichever is the earlier).

(2) In determining what constitutes a reasonable time for the purposes of subsection (1) the following matters may be considered—

(a) the period of time reasonably required to arrest the person and bring the person before the court for the hearing of the application;

(b) any time taken to arrange the attendance of any required medical practitioner, legal practitioner, independent person or other person for the purpose of the hearing or the taking of fingerprints or the conduct of a forensic procedure (as the case requires);

(c) the period of time reasonably required to take the fingerprints or to conduct the forensic procedure;

(d) any other matters reasonably connected with the investigation of the offence.

311 Return of detained person

A police officer into whose custody a person is delivered in accordance with a warrant issued under this Part must return the person to the officer in charge of the premises where the person was held—

(a) if the application in respect of which the warrant was issued is granted, within a period after the hearing of that application that reasonably permits the taking of the fingerprints or the conduct of a forensic procedure on the person; or



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(b) if the application in respect of which the warrant was issued is not granted, immediately after the hearing of that application.

Note

Section 307(2) provides for a warrant to direct the officer in charge of the premises where a detained person is held to deliver the person into the custody of the applicant for the warrant or another police officer.

312 Report to court after executing warrant (1) A police officer who executes a warrant issued

under this part must, as soon as practicable after executing the warrant, make and sign a report of the execution of the warrant.

(2) A report under subsection (1) must be given to the judge, magistrate or registrar who issued the warrant within 10 days after the report is made and signed.

(3) A report under subsection (1) must contain the following particulars—

(a) the date and time at which the person was arrested;

(b) the date and time at which the person was released from custody;

(c) if fingerprints were taken—

(i) the date, time and place at which the fingerprints were taken; and

(ii) the name and position of the person who took the fingerprints and every other person present;

(d) if a forensic procedure was conducted—

(i) the date, time and place at which the forensic procedure was conducted; and



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(ii) the name and position of the person who conducted the forensic procedure and every other person present; and

(iii) the type of forensic procedure conducted;

(e) whether reasonable force was used to enable the fingerprints to be taken or the forensic procedure to be conducted.

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Part 7.1—Applications for Orders, Adjournment and Legal Representation of Child or Incapable Person


231

CHAPTER 7—GENERAL

PART 7.1—APPLICATIONS FOR ORDERS, ADJOURNMENT AND LEGAL REPRESENTATION OF CHILD OR

INCAPABLE PERSON

313 Form of application for order An application for an order under this Act must—

(a) be in writing; and

(b) be supported by evidence on oath, whether oral or by affidavit; and

(c) state the offence in relation to which the application is made; and

(d) state the grounds on which the application is made; and

(e) if the person in relation to whom the application is made is an incapable person, state that fact; and

(f) if the person in relation to whom the application is made is a detained person, state the place at which the person is held or resides; and

(g) if the application is for the conduct of a forensic procedure, specify the type of examination or sample sought to be authorised (but need not specify the method by which the sample will be taken); and Note

Section 178 provides that a sample must be taken by the least intrusive and least painful method that is practicable in the circumstances.

(h) if the application is for a DNA sample from a deceased person, specify the place at which the body of the deceased person is held; and



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(i) if the application is for a retention order under section 106 or 231, identify the person from whom the fingerprints were taken or the DNA sample was taken (as the case requires).

314 Notice of application for order (1) An applicant for an order under this Act must

serve notice of the application—

(a) on the person who is the subject of the application or, in the case of an application in respect of a deceased person—

(i) on the senior next of kin of the deceased person; and

(ii) if the body of the deceased person is under the control of a coroner within the meaning of section 22 of the Coroners Act 2008, on the coroner; and

(b) if the person is a child, on a parent or guardian of the child; and

(c) if the person is an incapable person—

(i) on the spouse or domestic partner of the incapable person; or

(ii) on a parent or guardian of the incapable person.

(2) An applicant need not serve notice of the application on a child under the age of 10 years.

(3) Notice of an application for an order must specify the date, time and venue of the court at which the application will be heard and must be accompanied by—



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(a) a copy of the application; and

(b) a copy of any affidavit in support of the application.

(4) Notice of an application served on a child or incapable person and a parent, guardian, spouse or domestic partner (as the case requires) of the child or incapable person must—

(a) state the desirability of obtaining legal representation; and

(b) explain how legal representation may be obtained.

(5) Notice of an application for an order must be served—

(a) by personal service on the person to be served; or

(b) in the case of a person who is a detained person, by personal service on the person in charge of the place where the detained person is being held.

(6) The court may dispense with service under subsection (1)(a)(i), (b) or (c) if the court is satisfied that—

(a) it is impracticable for the applicant to comply; or

(b) it is inappropriate in the circumstances.

315 Power to adjourn hearing

(1) A court may adjourn the hearing of any application under this Act before the court—

(a) to any time and place; and

(b) for any purpose; and

(c) on any terms as to costs or otherwise—

as it considers appropriate.



234

(2) A court may adjourn a hearing—

(a) on the application of a party; or

(b) on its own motion.

(3) Without limiting subsection (1), a court may adjourn a hearing to enable the attendance of a relevant guardian of an incapable person or a child of or over the age of 15 years. Note

See also section 344A(7) of the Children, Youth and Families Act 2005.

316 Adjournment to obtain legal representation (1) Subject to subsection (2), a court must adjourn the

hearing of an application under this Act in respect of a child or an incapable person who is not legally represented to enable the child or incapable person to obtain legal representation.

(2) Subsection (1) does not apply unless the court is of the opinion that—

(a) the child is mature enough to give instructions; or

(b) the incapable person has the capacity to understand the circumstances of the application and give instructions.

(3) A court must not resume a hearing that was adjourned by it under subsection (1) unless the child or incapable person is legally represented or the court is satisfied that the child or incapable person has had, or has refused to have, legal advice provided in relation to the application.

(4) This section does not limit section 315.

317 Court may order legal assistance

The court may order Victoria Legal Aid to provide legal assistance (of a kind to which section 26(1) of the Legal Aid Act 1978 applies)



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to the person who is the subject of an application under Part 3.2 and, despite anything to the contrary in that Act, Victoria Legal Aid must provide legal assistance in accordance with the order.

318 Legal representation of child or incapable person (1) A legal practitioner representing a child or an

incapable person in an application under this Act must act in accordance with any instructions given or wishes expressed by the child or incapable person, so far as it is practicable to do so, having regard to—

(a) the maturity of the child; or

(b) the capacity of the incapable person to understand the circumstances of the application and give instructions.

(2) A legal practitioner representing—

(a) a child who is not mature enough to give instructions; or

(b) an incapable person who does not have the capacity to give instructions—

must—

(c) act in accordance with what the legal practitioner believes to be in the best interests of the child or incapable person; and

(d) to the extent that it is practicable to do so, communicate to the court the instructions given or wishes expressed by the child or incapable person.



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319 Persons who must be present during hearing of application

(1) Unless the court otherwise orders, the court must not make an order under this Act in the absence of—

(a) the person who is the subject of the application or, in the case of an application in respect of a deceased person, the senior next of kin of the deceased person; and

(b) if the person is a child under the age of 15 years, a parent or guardian of the child; and




(2) In considering whether to make an order in the absence of a parent, guardian, spouse or domestic partner of the child or incapable person who is the subject of the application, the court must have regard to—

(a) the age of the child; and

(b) as far as they can be ascertained, the wishes of the child or incapable person; and

(c) the best interests of the child or incapable person; and


(3) A person who is the subject of an application for an order or, in the case of an application in respect of a deceased person, the senior next of kin of the deceased person and a coroner in the circumstances referred to in section 155—



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(a) is a party to the application; and

(b) may be represented—

(i) by a legal practitioner; or

(ii) if the person is a child, with the leave of the court, by a parent or guardian of the child; or

(iii) if the person is an incapable person, with the leave of the court—

(A) by the spouse or domestic partner of the incapable person; or

(B) by a parent or guardian of the incapable person; and

(c) may call or cross-examine the applicant; and

(d) with the leave of the court, may call or cross-examine any other witness; and

(e) may address the court.

(4) The court must not grant leave under subsection (3)(d) unless the court considers that there are substantial reasons why, in the interests of justice, the witness should be called or cross-examined.

320 Court may make enquiries

In determining whether to make an order under this Act, the court may make any enquiries that it considers desirable, including receiving evidence given on oath or otherwise.

321 Reasons for making order (1) If the court makes an order, the court must—

(a) give reasons for its decision; and

(b) state the evidence on which it is satisfied for the making of the order; and



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(c) cause a note of the reasons to be entered in the records of the court.

(2) A failure of the court to comply with this section does not invalidate any order made by it.

322 Copy of order and reasons to be served The court must cause a copy of an order and the reasons for its decision to be served on the following persons, if the person is not present in court when the order is made—

(a) on the person who is the subject of the order or, in the case of an order in respect of a deceased person, on the senior next of kin of the deceased person; and

(b) if the person is a child, on a parent or guardian of the child; and


(i) on the spouse or domestic partner of the incapable person; or

(ii) on a parent or guardian of the incapable person; and

(d) in the case of an order made under section 156(1)(b), on the coroner who has control of the body of the deceased person within the meaning of section 22 of the Coroners Act 2008.

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Part 7.2—Withdrawal of Informed Consent and Recording Requirements


239

PART 7.2—WITHDRAWAL OF INFORMED CONSENT AND RECORDING REQUIREMENTS

323 Informed consent to be recorded (1) Subject to subsection (2), an investigating official

or police officer who gives a person information in accordance with this Part must record the giving of the information and the person's responses, if any—

(a) if the person is a detainee under Part 3.2, by audiovisual recording; or

(b) in any other case—

(i) by audio recording or audiovisual recording; or

(ii) in writing signed by the person.

(2) A police officer who gives information in accordance with section 71 to a child suspect and a parent or guardian of the child must record the giving of the information and each person's responses, if any—

(a) if the child suspect is in custody in relation to an indictable offence, by audio recording or audiovisual recording; or

(b) in any other case, by audio recording or audiovisual recording or in writing signed by the person.

Note

Part 7.3 provides for the service of copies of recordings and transcripts of recordings.

324 Withdrawal of consent (1) A person who has given informed consent may

withdraw that consent at any time before the questioning, fingerprinting or forensic procedure is completed.

Part 7.2—Withdrawal of Informed Consent and Recording Requirements


240

(2) A volunteer or the senior next of kin of a deceased person may withdraw consent to the retention of fingerprints and related fingerprint information or a DNA sample and related DNA information (as the case requires) at any time after the fingerprints are taken or the DNA sample is taken.

(3) A person withdraws consent under subsection (1) or (2) by notifying an investigating official, orally or in writing, of the withdrawal of consent.

(4) A person is taken to have withdrawn informed consent if the person objects to or resists the taking of fingerprints or the conduct of a forensic procedure.

(5) Withdrawal of consent takes effect immediately.

325 Withdrawal of consent to be recorded (1) Subject to subsection (2), a person who is orally

notified of a withdrawal of consent under this Act must record the withdrawal of consent as soon as practicable—

(a) in writing; or

(b) by audio recording or audiovisual recording.

(2) An audiovisual recording must be made of any withdrawal of consent to any questioning or investigation under section 40.

Note

Part 7.3 provides for the service of copies of recordings and transcripts of recordings.

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Part 7.3—Recordings


241

PART 7.3—RECORDINGS


designated person means any of the following persons acting in the performance of the person's duties—

(a) a member of Victoria Police personnel other than a protective services officer;

(b) a person or body engaged to provide services to another designated person in relation to a criminal proceeding;

(c) the Director of Public Prosecutions appointed under section 87AB of the Constitution Act 1975 or a person acting under the authority of the Director;

(d) the Chief Crown Prosecutor or a Crown Prosecutor or Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994;

(e) a person employed in the Office of Public Prosecutions under the Public Prosecutions Act 1994;

(f) a legal practitioner representing—

(i) the State; or

(ii) an informant;

(g) a legal practitioner representing—

(i) a suspect recorded under Chapter 3; or

(ii) any other suspect for whom a recording is relevant;



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(h) an officer or employee of Victoria Legal Aid employed under the Legal Aid Act 1978;

(i) a court or a person acting under the direction of a court;

(j) a coroner within the meaning of the Coroners Act 2008 or a person acting under the direction of a coroner;

(k) the Commissioner for Privacy and Data Protection appointed under section 96 of the Privacy and Data Protection Act 2014 or a person acting under the direction of the Commissioner;

(l) the Chief Examiner or an Examiner appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004 or a person acting under the direction of the Chief Examiner or an Examiner;

(m) the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or a person acting under the direction of the Commissioner;

(n) the Inspector within the meaning of the Victorian Inspectorate Act 2011 or a person acting under the direction of the Inspector;

(o) a member of the Legislative Assembly or Legislative Council or a person acting under the direction of the member;

(p) an investigating official or a person acting under the direction of an investigating official;



243

(q) a person engaged by a Department or agency to store or retrieve a record;

(r) an employee or representative of a legal professional body;

(s) a person required to supply or possess a recording under this Act or any other Act;

(t) a prescribed person or a person belonging to a prescribed class of persons;

modify, in relation to a recording, means—

(a) alter or erase the recording (in whole or in part); or

(b) add to the recording;

publish means—

(a) insert in a newspaper or other publication; or

(b) disseminate by broadcast, telecast or publication on the Internet; or

(c) bring to the notice of the public or any member of the public by any other means;

recording means the whole or any part of an audio recording or an audiovisual recording made under Chapter 3;

relevant recording means an audio recording, an audiovisual recording or a record in writing that is required to be made by this Act;

relevant person means—

(a) in relation to the conduct of questioning, the person who was questioned;



244

(b) in relation to the taking of fingerprints, the subject;

(c) in relation to the conduct of a forensic procedure, the subject;

(d) in relation to the giving of information, the person to whom the information is given.

327 Digital recordings to be certified A person who makes a relevant recording in a digitised format must certify that—

(a) the recording has not been altered after its making; and

(b) the prescribed requirements, if any, in relation to the method of recording have been met.

328 Service of recording of questioning of suspect (1) This section applies to any recording made under

this Act of the questioning of a person who is suspected of having committed an indictable offence.

(2) An investigating official who makes a recording to which this section applies must serve, by personal service, the following on the relevant person or the legal practitioner representing the relevant person without charge—

(a) if either an audio recording or an audiovisual recording was made, a copy of that recording as soon as practicable but not later than 7 days after the recording was made; or

(b) if both an audio recording and an audiovisual recording were made—

(i) the audio recording as soon as practicable but not later than 7 days after the recording was made; and



245

(ii) if the person is charged with an offence to which the recording relates, a copy of the audiovisual recording as soon as practicable but not later than 7 days after the person is charged; and

(c) if a transcript of the recording is prepared, a copy of the transcript as soon as practicable but not later than 7 days after its preparation.

(3) On request by a person charged with an offence, or the legal practitioner representing the person, the investigating official must provide an additional copy of the audiovisual recording referred to in subsection (2).

329 Service of other recordings A police officer who makes a recording required under this Act other than a recording referred to in section 328 must serve, by personal service, on the relevant person or the legal practitioner representing the relevant person without charge—

(a) in the case of an audio recording or an audiovisual recording, a copy of the recording as soon as practicable but not later than 7 days after the recording was made; and

(b) in the case of a record in writing, a copy of the record as soon as possible; and

(c) if a transcript of the recording is prepared, a copy of the transcript as soon as practicable but not later than 7 days after its preparation.

330 Court may give directions in relation to a recording (1) A court may give directions as to the supply,

copying, modifying, erasure, playing or publishing of a recording.



246

(2) A direction given under subsection (1) may be subject to any conditions that the court considers appropriate.

331 Retention of copy of recording (1) In this section—

court means—

(a) if a criminal proceeding to which the recording relates has commenced but has not been completed, the court before which the proceeding is currently being heard;

(b) in any other case, the Magistrates' Court;

Department Head has the same meaning as in the Public Administration Act 2004.

(2) The Chief Commissioner of Police must keep a copy of a recording made by a police officer in safe custody for a period of 7 years after the making of the recording.

(3) The relevant Department Head must keep a copy of a recording made by any other investigating official in safe custody for a period of 7 years after the making of the recording.

(4) Subject to subsection (6), if the court is satisfied that there are reasonable grounds to keep a copy of a recording for a period longer than 7 years, the court may order that the Chief Commissioner of Police or the relevant Department Head (as the case requires) retain the copy for a further period specified in the order.



247

(5) An application for an order under subsection (4) may be made by—

(a) the suspect in relation to whom the recording was made; or

(b) a designated person.

(6) The court must not make an order under subsection (4) unless—

(a) the court is satisfied that the applicant has served reasonable notice of the application on the suspect and the Chief Commissioner of Police or the relevant Department Head (as the case requires); and

(b) the court has given the suspect and the Chief Commissioner of Police or the relevant Department Head (as the case requires) a reasonable opportunity to be heard.

332 Use of recordings for training, teaching or testing purposes

(1) This section applies to a person who is—

(a) a member of Victoria Police personnel other than a protective services officer;

(b) a person or body engaged to provide services to Victoria Police in relation to the installation or maintenance of recording equipment;

(c) a legal practitioner or a person training to become a legal practitioner; or

(d) an investigating official or a person acting under the direction of an investigating official;

(e) a prescribed person or a person belonging to a prescribed class of persons.



248

(2) Subject to section 333, a recording may be played to a person referred to in subsection (1) for the purposes of training or teaching that person or testing the recording equipment if—

(a) the suspect has been convicted or found guilty of the charge to which the recording relates; and

(b) all legal proceedings in relation to the subject matter in the recording have been concluded; and

(c) all reasonable measures have been taken to prevent the identification of the suspect or any other person (including any alleged victim) from the recording when it is played.

333 Offences in relation to recordings (1) A person must not possess a recording unless the

person—

(a) is the suspect recorded on the recording; or

(b) is a designated person; or

(c) is a person required by a designated person to transport the recording; or

(d) possesses the recording for purposes connected with the suspect's defence and is—

(i) if the suspect is a child, a parent or guardian of the suspect; or



249

(ii) if the suspect is an incapable person, a parent, guardian, spouse or domestic partner of the suspect; or

(e) was served with the recording in accordance with a requirement under the Criminal Procedure Act 2009.


Notes

1 In relation to subsection (1)(e), examples are the requirements as to the contents of a full brief or a hand-up brief and the continuing obligation of disclosure under sections 41, 110, 111 and 185 respectively of the Criminal Procedure Act 2009.

2 The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units—see section 113D of the Sentencing Act 1991.

(2) A person must not play a recording unless the person is—

(a) a designated person; or

(b) the suspect recorded on the recording and the suspect plays the recording, for purposes connected with the defence of the suspect, to—

(i) the suspect; or

(ii) if the suspect is a child, a parent or guardian of the child; or



250

(iii) if the suspect is an incapable person, a parent, guardian, spouse or domestic partner of the incapable person or another person providing emotional support to the incapable person.


Note

The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units—see section 113D of the Sentencing Act 1991.

(3) A person must not publish a recording except in accordance with the direction of a court. Penalty: Level 7 imprisonment (2 years

maximum). Note


(4) A person must not supply or offer to supply a recording to another person unless—

(a) the supply is from a designated person to—

(i) another designated person; or

(ii) the suspect recorded on the recording; or

(iii) if the suspect is a child, a parent or guardian of the child; or

(iv) if the suspect is an incapable person, a parent, guardian, spouse or domestic partner of the incapable person; or

(b) the supply is from the suspect recorded on the recording to—

(i) a designated person; or



251

(ii) if the suspect is a child, a parent or guardian of the child; or

(iii) if the suspect is an incapable person, a parent, guardian, spouse or domestic partner of the incapable person; or

(c) the supplier is acting in accordance with the direction of a court.


Note


(5) A person must not copy a recording unless the person is a designated person. Penalty: Level 8 imprisonment (1 year

maximum). Note


(6) A designated person must not modify a recording except in accordance with the direction of a court. Penalty: Level 8 imprisonment (1 year

maximum). Note


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Part 7.4—Oversight by IBAC


252

PART 7.4—OVERSIGHT BY IBAC

334 IBAC to monitor police compliance with Act The IBAC is to monitor compliance by police officers and members of Victoria Police personnel with this Act.

335 Chief Commissioner of Police to report to IBAC regarding covert DNA sampling

(1) As soon as practicable after 1 January but not later than 1 March in each year, the Chief Commissioner of Police must provide a written report to the IBAC in relation to covert DNA sample authorisations given and applied for, and extensions of the period for destruction of covert DNA samples given, during the previous 12 months.

(2) The report must include—

(a) the number of covert DNA sample authorisations that have been given during the period to which the report relates and the reasons given under section 128(6)(d) for giving the authorisations; and

(b) the number of applications for covert DNA sample authorisations that have been refused during the period to which the report relates; and

(c) the number of extensions granted under section 220(2) during the period to which the report relates and the reasons given under section 220(4)(c) for giving the extensions; and

(d) the nature of the criminal activities in relation to which the covert DNA sample authorisations were given.



253

(3) The IBAC may require the Chief Commissioner of Police to provide additional information in relation to a covert DNA sample authorisation to which a report relates.

336 Inspection of records by authorised officers (1) In this section—

authorised officer has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011;

records include the following—

(a) DNA sample;

(b) DNA information;

(c) fingerprints;

(d) fingerprint information;

(e) things seized, and photographs of things seized, under search warrants or covert search warrants;

(f) records or recordings, whether in writing or in digital, audio or audiovisual form or otherwise, of any matter required to be recorded by this Act;

(g) documents on a database.

(2) An authorised officer must, from time to time, inspect any records of Victoria Police that the authorised officer considers necessary to determine the extent of compliance with this Act by Victoria Police and members of Victoria Police personnel.



254

(3) For the purpose of an inspection under this section, an authorised officer—

(a) after notifying the Chief Commissioner of Police, may enter at any reasonable time premises occupied by Victoria Police; and

(b) is entitled to have full and free access at all reasonable times to all records of Victoria Police that are relevant to the inspection; and

(c) may require a member of Victoria Police personnel to give the authorised officer any information that the IBAC considers necessary, being information that is in the member's possession, or to which the member has access, and that is relevant to the inspection.

(4) The Chief Commissioner of Police must ensure that members of Victoria Police personnel give an authorised officer any assistance that the authorised officer reasonably requires to enable the authorised officer to perform functions under this section.

337 IBAC to report to Parliament (1) The IBAC must make a report to Parliament at

yearly intervals on—

(a) the report given by the Chief Commissioner of Police to the IBAC under section 335; and

(b) the results of each inspection under section 336; and

(c) any recommended strategies to improve compliance with this Act.

(2) The IBAC must—

(a) cause the report to be transmitted to each House of Parliament as soon as practicable after 1 July each year; and



255

(b) give a copy of the report to the Attorney General at the same time as it is transmitted to each House.

(3) The Clerk of each House of Parliament must cause the report to be laid before the House on the day on which it is received or the next sitting day.

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Part 7.5—Miscellaneous


256

PART 7.5—MISCELLANEOUS

338 Service of documents (1) For the purposes of this Act, a document may be

served by ordinary service unless this Act requires personal service.

(2) Part 8.3 of Chapter 8 of the Criminal Procedure Act 2009 applies to service of a document under this Act.

339 Giving of information If this Act requires a police officer to inform a person of certain matters, the police officer must do so orally, unless otherwise provided, and in language that is likely to be understood by the person.

340 Regulations (1) The Governor in Council may make regulations

for or with respect to the following—

(a) the making, use (including for training purposes), possession, copying, storage, access to and destruction of a recording made under this Act;

(b) prescribing the form of any warrant under this Act;

(c) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations—

(a) may be of general or limited application; and

(b) may differ according to differences in time, place or circumstance; and

Part 7.5—Miscellaneous


257

(c) may confer a discretionary authority or impose a duty on a specified person or class of persons.

__________________


258

SCHEDULE

Section 136

DNA SAMPLE OFFENCES—HISTORICAL OFFENCES

Offences against the person—non-sexual offences 1 An offence against, or for which the penalty or the

maximum or minimum penalty is fixed by, section 4 (conspiracy to murder) (as amended) of the Crimes Act 1958 repealed on 1 June 1984 by section 8(b) of the Crimes (Conspiracy and Incitement) Act 1984.

2 An offence against, or for which the penalty or the maximum or minimum penalty is fixed by, any of the following provisions (as amended) of the Crimes Act 1958 repealed on 24 March 1986 by section 8(2) of the Crimes (Amendment) Act 1985—

(a) section 17 (intentionally causing grievous bodily harm or shooting, etc. with intention to do grievous bodily harm or to resist or prevent arrest);

(b) section 19 (inflicting bodily injury);

(c) section 19A (inflicting grievous bodily harm);

(d) section 20 (attempting to choke, etc. in order to commit an indictable offence).

Offences against the person—sexual offences 3 An offence against section 45(1) (sexual

penetration of child under the age of 10) (as amended) of the Crimes Act 1958 inserted in the Crimes Act 1958 on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991 and repealed by section 5 of the Crimes (Amendment) Act 2000.


259

4 An offence against section 46(1) (sexual penetration of child aged between 10 and 16) (as amended) of the Crimes Act 1958 inserted in the Crimes Act 1958 on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991 and repealed by section 5 of the Crimes (Amendment) Act 2000.

5 An offence against, or for which the penalty or the maximum or minimum penalty is fixed by, any of the following provisions (as amended) inserted in the Crimes Act 1958 on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991 and repealed on 1 January 1992 by section 3 of the Crimes (Rape) Act 1991—

(a) section 40 (rape);

(b) section 41 (rape with aggravating circumstances);

(c) section 43 (indecent assault with aggravating circumstances).

6 An offence against, or for which the penalty or the maximum or minimum penalty is fixed by, any of the following provisions (as amended) inserted in the Crimes Act 1958 on 1 March 1981 by section 5 of the Crimes (Sexual Offences) Act 1980 and repealed on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991—

(a) section 44(1) (indecent assault);

(b) section 44(2) (indecent assault with aggravating circumstances);

(c) section 45(1) (rape);

(d) section 45(2) (attempted rape);

(e) section 45(2) (assault with intent to commit rape);


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(f) section 45(3) (rape with aggravating circumstances);

(g) section 45(4) (attempted rape with aggravating circumstances);

(h) section 45(4) (assault with intent to commit rape with aggravating circumstances);

(i) section 47(1) (sexual penetration of child under the age of 10);

(j) section 47(2) (attempted sexual penetration of child under the age of 10);

(k) section 47(2) (assault with intent to take part in act of sexual penetration with child under the age of 10);

(l) section 48(1) (sexual penetration of child aged between 10 and 16);

(m) section 48(2) (attempted sexual penetration of child aged between 10 and 16);

(n) section 48(2) (assault with intent to take part in act of sexual penetration with child aged between 10 and 16);

(o) section 50(1) (gross indecency with child under the age of 16);

(p) section 51 (sexual penetration of mentally ill or intellectually defective person);

(q) section 51 (attempted sexual penetration of mentally ill or intellectually defective person);

(r) section 51 (assault with intent to take part in act of sexual penetration with mentally ill or intellectually defective person);


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(s) section 52 (incest) but not section 52(4) or (5) if both people are aged 18 years or older and each consented to taking part in the act of sexual penetration;

(t) section 54 (procuring persons by threats or fraud);

(u) section 55 (administration of drugs, etc.);

(v) section 56 (abduction and detention);

(w) section 61 (unlawful detention for purposes of sexual penetration).

7 An offence against, or for which the penalty or the maximum or minimum penalty is fixed by, any of the following provisions (as amended) of the Crimes Act 1958 repealed on 1 March 1981 by section 5 of the Crimes (Sexual Offences) Act 1980—

(a) section 44(1) (rape);

(b) section 44(2) (rape with mitigating circumstances);

(c) section 45 (attempted rape);

(d) section 45 (assault with intent to rape);

(e) section 46 (unlawfully and carnally knowing and abusing a girl under the age of 10);

(f) section 47 (attempting to unlawfully and carnally know and abuse girl under the age of 10);

(g) section 47 (assault with intent to unlawfully and carnally know and abuse girl under the age of 10);

(h) section 48(1) (unlawfully and carnally knowing and abusing girl aged between 10 and 16);


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(i) section 48(2) (attempting to unlawfully and carnally know and abuse girl aged between 10 and 16);

(j) section 48(2) (assault with intent to unlawfully and carnally know and abuse girl aged between 10 and 16);

(k) section 52 (incest) but not section 52(3) or (4) if the woman or girl is the sister of the offender and both are aged 18 years or older and the carnal knowledge or attempt or assault with intent to have unlawful carnal knowledge was or was made with the consent of the sister;

(l) section 54 (carnal knowledge of female mentally ill or intellectually defective person);

(m) section 54 (attempted carnal knowledge of female mentally ill or intellectually defective person);

(n) section 54 (assault with intent to carnally know female mentally ill or intellectually defective person);

(o) section 55(1) (indecent assault);

(p) section 55(3) (felonious indecent assault);

(q) section 57(1) or (2) (procuring defilement of woman by threats or fraud or administering drugs);

(r) section 59 (abduction of girl under eighteen with intent to have carnal knowledge);

(s) section 60 (unlawful detention with intent to have carnal knowledge);

(t) section 62 (forcible abduction of woman);

(u) section 68(1) (buggery);


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(v) section 68(3A) or (3B) (indecent assault on male person);

(w) section 69(1) (act of gross indecency with girl under the age of 16).

8 An offence against, or for which the penalty or the maximum or minimum penalty is fixed by, section 61 (abduction of woman from motives of lucre) of the Crimes Act 1958 repealed on 1 March 1981 by section 5 of the Crimes (Sexual Offences) Act 1980.

Property offences 9 An offence against, or for which the penalty or the

maximum or minimum penalty is fixed by, any of the following provisions of the Crimes Act 1958 repealed on 1 October 1974 by section 2(1)(b) of the Crimes (Theft) Act 1973—

(a) section 117 (robbery; larceny from the person);

(b) section 118 (assault with intent to rob);

(c) section 119 (robbery with wounding);

(d) section 120 (robbery under arms or company);

(e) section 128 (burglary by breaking out);

(f) section 130 (burglary with wounding);

(g) section 132 (entering house at night with intent to commit a felony);

(h) section 133 (breaking into etc., building within curtilage);

(i) section 134 (house-breaking);

(j) section 135 (house-breaking etc., with intent etc.);

(k) section 138 (larceny in the house);


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(l) section 139 (larceny with menaces).

10 The common law offence of robbery abolished on 1 October 1974 by section 3(1) of the Crimes (Theft) Act 1973.

11 The common law offence of burglary abolished on 1 October 1974 by section 3(1) of the Crimes (Theft) Act 1973.

12 An offence against, or for which the penalty or the maximum or minimum penalty is fixed by, any of the following provisions of the Crimes Act 1958 repealed on 1 July 1979 by section 2(1)(c) of the Crimes (Criminal Damage) Act 1978—

(a) section 196 (setting fire to church etc.);

(b) section 197 (setting fire to house anyone being in it);

(c) section 199 (setting fire to railway buildings etc.);

(d) section 200 (setting fire to public buildings);

(e) section 201 (setting fire to other buildings);

(f) section 202 (setting fire to goods in buildings);

(g) section 203 (attempting to set fire to buildings).

13 An offence against section 203A (placing inflammable substance with intent to destroy, damage, etc.) (as amended) of the Crimes Act 1958 repealed on 1 July 1979 by section 2(1)(c) of the Crimes (Criminal Damage) Act 1978.

Drug offences 14 An offence against section 71 of the Drugs,

Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances


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(Amendment) Act 2001 (trafficking in a drug of dependence).

15 An offence against section 72(1)(ab) of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001 (cultivation of a narcotic plant in circumstances where the offence is committed in relation to a quantity of a drug of dependence, being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant).

16 An offence against section 72(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001 (cultivation of a narcotic plant for a purpose related to trafficking in that narcotic plant).

General 17 An offence that immediately before the

commencement of this Act is an indictable offence but is repealed after the commencement of this Act.

18 An offence that, on or after the commencement of this Act, is an indictable offence but is repealed after the commencement of this Act.

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ENDNOTES

By Authority. Government Printer for the State of Victoria.

Documents

Criminal Investigation Powers Bill Exposure Draftassets.justice.vic.gov.au/justice/resources/ecc85dd3-a4d6-423f-a... · Criminal Investigation Powers Bill Exposure Draft ... CHAPTER